INJUSTICE TO DAUGHTERS’ DONE AWAY WITH NEW SC VERDICT

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On Tuesday, in a historic judgment, SC held that a daughter has an equal share in the family’s ancestral property irrespective of the fact that whether her father was alive or not at the time of the Hindu Succession (Amendment) Act, 2005 which gave equal coparcenary rights to women. A three-judge bench headed by Justice Arun Mishra held that the right of Hindu woman in her ancestral property is by birth and a woman is a joint legal heir to the ancestral property in the same way as a male heir from the very birth. Therefore, the father (the coparcener) doesn’t need to be alive as on 9.9.2005 (on this date the Hindu Succession (Amendment) Act, 2005 came into effect).

WHAT IS COPARCENARY PROPERTY?

The property which is inherited by a Hindu from his father, grandfather, or great-grandfather is known as coparcenary property. The coparcenary property is held as joint owners and the coparceners are heirs of the property that get right in the property by the very birth.

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WHAT DOES 2005 AMENDMENT SAYS?

There are two major schools in Hindu law- the Mitakshara school and the Dayabhaga school.The Mitakshara school applies to almost every part of India except Bengal. In 1956, Mitakshara school of law was codified as the Hindu Succession Act, 1956 which governed succession and inheritance of the property but it didn’t recognize women as the legal heirs in the property, therefore women had no share in the ancestral property in the 1956 act. In 2005, an amendment was brought which recognized women as coparceners or joint legal heirs in the property.Accordingly, section 6 of the act was amended to make daughter coparceners of the property by the birth in the same manner as the son. Also, the amended law gave the daughters the same rights and liabilities in the coparcenary property as she would have had if she were a son. The law applies in the cases where the partition of the ancestral property takes place, it doesn’t apply when succession takes place through a will.

WHY THE PRESENT CASE?

Now the question is when the 2005 amendment gave equal co-coparcenary rights to women in the property, then why is the present case significant. After the 2005 amendment, there were multiple confusions on the applicability of the law, i.e. whether the law would be applied retrospectively and whether the rights of women depend on the living status of the father through which she inherits the property. There were different views by different courts on this issue. In a 2015 judgment of Prakash V Phulwati, SC held that 2005 amendment will only be applied if the father is alive on the 9.9.2005 whereas, in February 2018, a two-judge bench holding a contrary view ruled that even if the father was on the date of 9.9.2005, the rights will pass to the daughters during the partition. But in April 2018, the SC again reiterated its’ 2015 position. Therefore, the present judgment by a three-judge bench, overruled the earlier judgments now settles the position and that irrespective of the living status of the father, women will have the equal right in the coparcenary property.

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ON WHAT BASIS COURT DECIDED THE CASE?

The court said that the amendment of 2005 gave the birthright to the women in the coparcenary property in the same manner as been given to the sons. The daughter is considered as coparceners in the property with the same rights as if she were a son. Although the rights can be claimed from 9.9.2005, the provisions will have a retrospective application and therefore her right will not depend on any other factor. Moreover, the 2005 amendment intended to end the discrimination on the ground of gender that women were subjected to and to ensure the fundamental right of equality which is guaranteed by the Constitution.

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