New Delhi: In 2005, parliament amended the Hindu Succession Act, 1956 to give daughters equal rights to inheritance and make them coparceners, on par with sons in a family. On August 11, the Supreme Court bench of Justices Arun Mishra, S. Abdul Nazeer and M.R. Shah, in its judgment in Vineeta Sharma v Rakesh Sharma, held that a daughter is a coparcener by birth and that whether the father had died prior to or was alive on the date of the amendment was not relevant.
To unravel the judgment and its implications, The Wire interviewed Dr. Saumya Uma, who works as Associate Professor at Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, where she teaches family law and feminism, among other courses.
Can we say the judgment in Vineeta Sharma v Rakesh Sharma has ended years of uncertainty over the correct interpretation of Section 6 of Hindu Succession Act (HSA) 1956?
Yes, we can say so. Section 6 of the Hindu Succession Act (HSA) 1956 deals with the devolution of coparcenary property of a person who died intestate (without leaving a will). In 2005, this law was amended to include daughters as coparceners by birth, carrying the same rights and responsibilities as sons. The main issue for determination by the court in Vineeta Sharma was whether daughters could exercise their right as coparceners if the father was not alive on the date of the amendment.
There were two major judgments that addressed this issue earlier. In Prakash & Others v Phulavati & Others, delivered in 2016 by a division bench of the Supreme Court, introduced two basic criteria for applying the 2005 amendment to daughters. First, it held that a daughter cannot reopen a partition that took place prior to December 20, 2004. Second, the amended section would apply to the daughter only if her father was alive on the date when the amendment came into force, that is, September 9, 2005. In the legislation, there is no express mention of this second condition of “the living daughter of a living coparcener”.
The rationale given by the court in Prakash was that if the father who was a coparcener was not alive on the date that the amendment came into force, Section 6 as it existed prior to the 2005 amendment would apply. By this law, there would be a fictional partition of the coparcenary property upon his death, his share ascertained and that property would be distributed as per the rules of intestate succession. However, a daughter’s eligibility to be a coparcener would remain only so long as there is no partition of the joint family property. Hence a fictional partition due to father’s death meant that the daughter could not be a coparcener under Section 6. This rationale was relied upon in a 2018 judgment of the Supreme Court in Mangammal v T B Raju.
Meanwhile, another division bench of the Supreme Court delivered a contradictory judgment in Danamma & Others v Amar & Others, in 2018. The judgment applied the amended Section 6 to give the daughter equal coparcenary rights although her father died in 2001, prior to the 2005 amendment. Here, the court noted that the amended Section 6 stipulates that “on and from the commencement of the amended Act of 2005”, the daughter of a coparcener shall by birth become a coparcener in her own right, in the same manner as a son.” It noted that it was the factum of birth of the daughter that gave her coparcenary right, irrespective of when she was born, and that devolution of property is a later stage which occurs as a consequence of death of a coparcener.
The cases were then referred to a larger (three-judge) bench of the Supreme Court, and the outcome was the Vineeta Sharma judgment. The Supreme Court overruled the Prakash judgment in its entirety and partially overruled Danamma. It said that since the daughter acquired the coparcenary right by birth, it was not necessary for the father coparcener to be living as on September 9. 2005.
Can you explain the legal principle involved in this latest decision?
Mitakshara law divides property into two types: unobstructed heritage (apratibandha daya) and obstructed heritage (saptratibandha daya). Since coparcenary is a right by birth, it is unobstructed heritage, because acquisition of the coparcenary interest is not obstructed by the existence of the owner of property. The Supreme Court has correctly reasoned that since the 2005 amendment accorded daughters a coparcenary right by birth, it is unobstructed heritage, and so the existence (or otherwise) of the father at the time of the 2005 amendment is irrelevant.
What was the impetus for parliament to amend the HSA in 2005?
The Hindu joint family and the Mitakshara coparcenary, which is a subset of the former, are institutions where the rights of members are inherently unequal. Coparcenary property is clearly a patriarchal concept that is firmly embedded in male entitlement to property by birth in a Hindu joint family.
The Hindu Code Bill 1948 had abolished the concepts of Hindu joint family and coparcenary and provided for a uniform scheme of inheritance of the property. However, this led to stiff resistance from traditionalists who feared that abolishing the Hindu joint family would lead to disintegration of the family and give rise to hostility and endless litigation.
The HSA which was enacted in 1956 was a compromise document, that adopted a midway approach between complete abolition and total retention. It diluted the principle of survivorship (by which surviving coparceners share the property) and made some inroads to protect the property rights of female heirs who were proximate to the male deceased (such as widow, daughter and mother). While this was a significant step, there were other gender discriminatory provisions that were enacted in HSA 1956.
Since succession is a subject in the concurrent list of the constitution, both the Union and the states are competent to bring about legislative changes in succession laws. Kerala abolished the Hindu joint family system in 1975 through a state legislation due to its inherent unequal nature. Andhra Pradesh (in 1985), Tamil Nadu (in 1989), Karnataka (in 1994) and Maharashtra (in 1994) adopted a reformist approach. They enacted state amendments to the HSA to give daughters coparcenary rights equal to that of sons, and to eradicate the dowry system through positive measures of empowerment. However, this benefit was exclusively for daughters who were unmarried when the amendment came into force; future marriage of the daughter did not divest her of the property rights that had already been vested in her.
The 2005 amendment, which was applicable to the entire country, went one step further than the state amendments at infusing gender equality, and enlarged the rights of daughters. It gave equal coparcenary rights to all daughters, irrespective of their marital status.
The Statement of Objects and Reasons to the 2005 amendment Bill, indicates the impetus for the amendment. It recognised that exclusion of daughters from the coparcenary and rights that accrue to the same, contributed to gender-based discrimination, and violated the fundamental right to equality guaranteed by the Indian constitution.
What will be the impact of Vineeta Sharma on these state amendments?
As per Article 254(1) of the constitution, state amendments, if inconsistent with the Central amendments, would be inoperative and the Central amendment would prevail to the extent of the inconsistency. For example, after the 2005 amendment, all daughters would be entitled to coparcenary rights irrespective of their marital status, even in those states which had state amendments to the contrary. Now, Vineeta Sharma is binding on all courts across the country.
How does the court distinguish retrospective from retroactive amendment?
The words prospective, retrospective and retroactive differ in their meanings. A statute or statutory provision/amendment that has prospective application creates new rights and obligations from the date it comes into force.
Conversely, retrospective effect means that the statutory provisions operate backwards and take away or impair rights that were already vested in a person, or attach a new disability, or impose a new obligation or duty on past transactions and actions.
Retroactive statute or provision is one that applies subsequent to its enactment, but its operation or application is based upon status or character that has arisen or been acquired prior to it, drawn from antecedent events.
The court has explained that the 2005 amendment to Section 6 of the HSA gives a right to daughters, by birth, in a Hindu coparcenary. The right can be claimed prospectively, on and from the date of the amendment in 2005. However, it is based on the birth of the daughter which is an antecedent event. Hence, the court clarified that the 2005 amendment has a retroactive effect.
By holding that the daughter’s rights are the same “as that of a son” and “as if she had been a son at the time of birth”, does not the judgment create a legal fiction steeped in gender stereotype in favour of the son?
Since sons have been favoured for property rights in a Hindu Mitakshara coparcenary, the language of the law places daughters on par with sons by the use of terminology you have quoted. On the one hand, this legal prescription has normative value, as it lays down a rule of non-discrimination, for violation of which a daughter now has the right to approach the courts.
However, historically, equality for women has been understood to be the right to be treated the same as men. The 2005 amendment is yet another example of this phenomenon. The law prescribes that women (daughters) must be treated according to male (sons’) standards, which is formal equality. This is problematic as it obscures the way in which women are different from men, and how such differences impede women’s rights. This is what the concept of substantive equality encapsulates. For example, within a Hindu joint family, a daughter, upon marriage, usually leaves the natal house and starts living with her husband and his family members; the son does not. The consequent treatment of married daughters (as belonging to their husbands’ families) impairs their rights within the natal family.
Will the judgment have practical significance? Will and should daughters go to court to claim their coparcenary rights to ancestral property in the light of this judgment? Even if the daughters are not so inclined, should there be an awareness campaign to inspire them to legally fight for their rights following this judgment?
Yes, the judgment would have practical significance, albeit for a small section of women. Given the increasing poverty, retrenchments and job losses faced by the Indian society in recent times, the property available for succession is considerably reduced, to start with. This judgment is significant for daughters living in families belonging to the propertied classes.
Assertion of rights through the law is premised upon awareness of rights, as well as the availability of human and financial resources for the same.
However, it is not easy for women to antagonise their natal family and approach the courts, seeking an assertion of their property rights. After all, the natal family often forms the support system for the woman, in the eventuality of the breakdown of her marriage or upon the death of her husband.
Social stigma and victim blaming are also likely to deter her from asserting her rights. While women like Mary Roy and Vineeta Sharma have approached the courts for legal redress when they were denied equal property rights, I suspect that there is a large majority who are intimidated into silence or coerced to relinquish their property rights in favour of their brothers. Women are often persuaded to relinquish their property rights in the interest of peace and harmony in the family. After all, daughters are expected to play the gendered role of peacemakers, and are treated as icons of supreme sacrifice!
Have there been any studies of the 2005 amendment, and how it has transformed/not transformed the status of women?
We cannot say that the 2005 amendment has not transformed the status of women or benefitted women at all. For example, one empirical study, undertaken in the five states that witnessed law reform prior to the 2005 amendment, finds that the reform positively impacted women’s education, labour force participation and their daughter’s education.
Another study finds that the 2005 amendment has led to greater access to women-owned physical and human capital assets, and that it has enhanced the probability of daughters inheriting land.
However, it is a fact that the 2005 amendment and in fact, any future law reform on property rights of women, would need to confront rigid patriarchal and cultural norms, beliefs, practices and biases. After all, giving women a share of the family property will consequently reduce the property shares of the male members, which they are bound to resent, resist and revolt against, given the patriarchal mindset that only men can own and manage property.
A study by Landesa examined the implementation of the 2005 amendment in three states – Andhra Pradesh, Bihar and Madhya Pradesh. The empirical study identified various lacunae in the formal system and prevailing social practices and barriers that obstruct an effective implementation of the amendment that gave daughters coparcenary right by birth. It finds that through deeply patriarchal social practices, dowry is substituted for daughters’ land and inheritance rights. Since cash, jewellery and other consumables given as dowry are controlled and used by the husband and his family members, the daughter is denied economic and social equality within the family.
Interestingly, the study also found that women are likely to inherit more land as a widow than as a daughter, and daughters, even when they inherit, are often not given equal share as the sons. The study called for key interventions in terms of reviewing the revenue codes, training the staff that implement the law, and oversight mechanisms at the state level to ensure effective implementation.
The lesson that the empirical studies bring us is that while the Vineeta Sharma judgment is a significant one, in order that daughters actually benefit from the judgment at the ground level, strategies need to be devised for addressing the social, cultural and economic barriers which are deeply entrenched in the Indian society.
In a patriarchal society that treats women as worthless and as second-class citizens, equal property rights in law may place daughters in a vulnerable situation within their families, unless complemented by socio-economic and cultural strategies for empowerment. For example, in Haryana and Rajasthan, daughters are made to sign a release/relinquishment deed (called haq tyaag) by which they relinquish their rights in ancestral property in favour of their male family members.
While such a relinquishment is supposed to be voluntary, women are often subjected to overt and covert pressure tactics by their brothers in particular. Theoretically, they can dispute the validity of the deed on the ground of fraud, coercion, threat and intimidation by their family members. But practically, it is a Herculean task. Women are likely to be seen as threats to their natal families, unless social, economic and cultural processes to empower daughters as well as awareness-raising activities with their families are in place.
The judgment cites the Supreme Court’s previous judgment in Savita Samvedi (1996) approvingly thus: “A son is a son until he gets a wife. A daughter is a daughter throughout her life”. In what context had the court stated this, and what does the court’s reliance on that statement now suggest?
In para 49 of the judgment, the court hails the 2005 amendment as fulfilling the constitutional goal of gender justice. In the next para, the judgment quotes from the 1996 judgment mentioned in the question. The court’s reliance on the quote places a daughter on a pedestal (as she is a daughter throughout her life) and a son at the ground level (as he is a son only till he gets married).
This is hardly a model for gender equality, and certainly not one advocated by feminists! The quote credits the son with no agency whatsoever, and paints his wife as manipulative, who will take him away from his family upon marriage. Additionally, by pitting the daughter with the daughter-in-law (son’s wife), the court, unknowingly, falls into the trap of the all too familiar narrative of “women are women’s worst enemies”. The quote does not sit well in the otherwise progressive tone of the judgment.
How do you look at the judgment in Vineeta Sharma in the light of the court’s overall jurisprudence on gender equality? Does it inspire confidence that the court is on a course-correction exercise?
The court may be on a course correction exercise, which is positive. Only time will tell if this is actually so. It is gratifying that constitutional principles of equality are being applied to the Hindu law of inheritance, but the project is far from over.
Section 6 HSA is the tip of the iceberg. There are many gender discriminatory provisions in the law. First, the Hindu Mitakshara law of coparcenary has traditionally given coparcenary rights as a birth right to all male members of the Hindu joint family within three generations after the last holder of property. In contrast, the 2005 amendment has only carved out coparcenary rights by birth for daughters, not all women in the Hindu joint family.
Second, the HSA has two separate schemes of succession for men and women, which the law governing succession of no other religious community has.
In the case of women intestates (who have died without making a will), there are different schemes of inheritance based on the source of the woman’s property (whether inherited from parents or husband/father-in-law) and the presence of children, which does not exist for male intestates. Indeed, women are not viewed as independent entities who are capable of acquiring, owning and managing property.
Third, agnates (persons whose relationship is traced purely through men) are preferred over cognates (persons whose relationship is not traced purely through men) even if the agnate is more remotely related. In the scheme of succession for a male Hindu, S. 8 HSA states the order of preference thus: (a) For example, father’s father’s son (paternal uncle) gets preference over mother’s father’s son (maternal uncle); additionally father’s father’s son’s son (paternal uncle’s son) also gets preference as an agnate over maternal uncle who is a cognate, though such a son is further removed in relationship from the deceased.
Fourth, while full blood (where two persons are born from the same set of parents) is preferred to half blood relatives (where the siblings share the same father but different mother), relationships by uterine blood (where the siblings share the same mother but different father) are completely. As an illustration, in the Schedule related to Section 8 HSA, the list of Class II heirs to a Hindu male contain a small explanation stating that “the term ‘brother and sister’ here, does not include a reference to a brother or sister by uterine blood”.
These are some examples of the rampant gender discriminatory provisions that continue to exist in the HSA. It is my hope that the Vineeta Sharma judgment can pave way for the necessary law reform processes to bring the HSA in line with the constitutional goal of gender equality.