coparcenary

EQUALITY IN INHERITANCE: A Judicial Victory For Female Coparceners In India

by Abhigyan Tripathi and Kshitij Pal

Introduction

The evil of patriarchy is one which has percolated down our society from the archaic times and needs to be rooted out for ensuring the fulfilment of the constitutional vision of equality and equity. This inequality among the genders can only be tackled by taking it one step at a time. The Supreme Court on the 11th of August, 2020 pronounced a landmark verdict in Vineet Sharma v. Rakesh Sharma(“the Judgement”) towards the pursuit of gender justice and cleared all the confusion regarding coparcenary rights of females that had arisen after the 2005 amendment of the Hindu Succession Act, 1956.

The three-judge bench in its verdict held that the coparcenary rights of females, in case of intestate succession, does not depend on whether the father was alive on the date when the amendment act came into force, i.e. 9th of September, 2005. This has been hailed as a definitive victory in the crusade of gender justice and securing an inclusive future for the Indian society.

The discussion at hand is aimed at analyzing the feminist perspective which forms the basis of this Judgement in its interpretation of the much-debated provision of the succession law. The judiciary has taken a very important stance towards fulfilling the constitutional vision of establishing a more flexible and accommodating society. It is therefore pertinent to acknowledge this growth and generate a conversation for reaching a better level of understanding in the matter.

The Hindu Succession (Amendment) Act, 2005- Analysing its inadequacy

Prior to the change in the succession regime, the property which had been passed down to the current holder from at least four generations of lineage, i.e. ancestral property could only be passed on to the male members of a Hindu Undivided Family (“HUF”). This is also known as the Mitakshara Law and meant that daughters did not have coparcenary rights. Such a regressive attitude had always been a part of the Hindu customary law and reflected the toxic patriarchal undertones that were prevalent in the society.

The inequality in law was addressed in 2005, through an amendment to the Hindu Succession Act. Even though the change recognized the coparcenary rights of women to exist from birth, it created a different kind of complication as to whom it actually applied. The new loophole that had sprung up was a lack of clarity in laying down whether the daughter would still get the right over the property if the patriarch was not alive on or after the date of enforcement of the amendment act, i.e. September 9, 2005.

The Apex Court had previously attempted to solve this conundrum in law prior to the Judgement on two different occasions. In the judgement of Prakash v. Phulavati, a two-judge bench held that daughters in a HUF could claim their coparcenary rights only if the holder of the property was alive after the above-mentioned date. The SC, however, contradicted its own position in Danamav. Amar when it opined that the coparcenary rights in intestate succession existed irrespective of the patriarch’s living status. The gap that had arisen in the judiciary’s understanding was finally bridged in the Judgement of 11th of August, thus bringing about a remarkable change in a society built upon the gender bias.

11th of August, 2020: A Historical Day for the Inheritance Rights of Women

The aspect of inclusivity which forms a major part of the feminist discourse has certainly been taken into account by the Apex Court while deciding the matter at hand. The Court was of the opinion that these rights of a female coparcener are perpetual and cannot be truncated just because of the peculiar wording used in the Amendment Act of 2005. The Judgement has cleared that the application of the 2005 amendment needs to be retrospective in nature. This implies that the coparcenary rights would have to be conferred on daughters irrespective of whether they were born before or after 2005. 

Taking into account the Statement of Objects and Reasons behind the Bill of the 2005 law, the Supreme Court has held that the intent of the Legislature of ensuring social justice is inalienable and cannot be negated merely due to an absence in specifying the exact modality of partition in case of female coparceners. The Court has given a simple explanation that mere birth (and consequent survivorship) of the female heir, just like her male counterpart, is essential for succession. This becomes all the more relevant through a perusal of the bare provision which uses the words “daughter of a coparcener” and not the daughter of a living coparcener.

The significance of this verdict will have long term implications for the social set-up of India in a lot of ways. The current paradigm which exists in India is highly adverse for the propagation of feminist ideology and needs to undergo a shift. Such a shift can only be gradual and does not occur overnight. The dismal sex ratio, high rate of female foeticide/infanticide and in general contemptible treatment of women in India is testament to the fact that such changes, no matter how small they are, need to be introduced so as to influence the mindset of the Indian populace in a positive manner. The judiciary, in such circumstances of ambiguity, acts as a ray of hope and clarity.

With reference to the issue of inheritance and succession, the point that needs to be taken into account is the toxicity which exists in the application of the Mitakshara Law. It functions on the basis of the belief that once a woman is ‘married off’ to another family, she becomes a part of the family which she has married into. It is also important to note that as per Hindu naming customs, the bride generally takes the last name of her spouse implying that she has now cut off ties with the family in which she had been born.

The obsession of Indian families with a male child primarily stems from such an orthodox ideology. In the case of a male child, he would retain the family name and hence remain part of the lineal family tree. The male heir has the responsibility of ensuring the advancement of the family and amassing property in its name, which the girl child gives up after getting married. The damage that has been caused due to the patriarchal nature of the 1956 Act, till its amendment in 2005 cannot even be quantified.  

The latest judicial pronouncement is historical since it denotes a major step towards equal status of women in society by clearly demarcating their rights, with respect to inheritance, which the 2005 amendment had failed owing to its aforementioned inadequacies. This piece of judicial interpretation needs to be reinforced through proper implementation steps by the executive such as awareness generation among women about their rights, creating a proper framework to bring to justice those family members who deprive the female coparceners of their rights and so forth to ensure better effectiveness of the change that has been brought about.

Even though the uphill battle has been won legally, it is just the first step in a long series of changes that the societal thought process needs to undergo. The struggle for a society free from gender discrimination has to be fought on different levels and the best way to do so is through adopting a feminist ideology since it entails equality as well as equity among genders. The current scenario in India calls for an urgent change in its dynamics which can only be achieved through a collaborative effort between the judicial and executive machinery.

Views are personal.

Image credits: The Economic Times

ABOUT THE AUTHOR

Abhigyan Tripathi and Kshitij Pal are currently pursuing law from Rajiv Gandhi National University of Law, Punjab.

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