JUSTICE STARTS FROM HOME
It is not only about showcasing strength, but teaching families to accept the same. It is not only about struggle, but also the inevitable relevance of the judiciary. It is not only about inheriting property, but also reclaiming the rights denied to women.
On the 11th of August 2020, a three judge bench consisting of Justices Arun Mishra, S Abdul Nazeer and M R Shah delivered a landmark judgement in the case of Vineeta Sharma v. Rakesh Sharma which gives daughters an equal right to inherit the property of a joint Hindu family. The judgement marks an end to the loopholes surrounding the inheritance of property by women, according to the Hindu Succession Act 1956 and also makes up for the legal inadequacies suffered by the previous amendment (the 2005 amendment).
In our country, there has always existed a system of property division which was reflective of the patriarchal mind-set that dominated all spheres of society. In different regions of the country, varying systems of property division were used. There was the Dayabhaga system in Bengal, Mayukha system in Bombay, Konkan and Gujarat and Marumakkattayam and Nambudri system in Kerala and Mitakshara system in the remaining pockets of India. Under Dayabhaga and Mitakshara systems, a coparcenary cannot begin with females. But under the Dayabhaga system, men and women can become coparceners in the family property. But under the Mitakshara system, only male members can become coparceners. This was a blatant violation of the right to equality granted by the Constitution of India. The restrictions placed on inheritance of property by women lacked rational grounds and also rendered women severely dependent on the men in their lives.
A milestone in reforms for the sake of women was the Hindu Women’s Right to Properties Act 1937. Prior to this Act, women were excluded from getting a share in the joint family property. Succession to the property of a male member was governed by rule of survivorship. The rule of survivorship means that on the death of a member of a joint and undivided family, his share in the joint family property passes on to the surviving male members called as coparceners. Through this Act, the widow of a deceased coparcener of a Mitakshara undivided family will have the same interest which her husband had while he was alive. Also, the widow was given the right to claim partition (As per Section 3(3)).
With the advent of the Hindu Succession Act of 1956, all the different types of property division were sought to be blended into a single uniform procedure across the nation. The purpose of this Act was to lay down codified rules and procedures of property division for families belonging to the communities of Hindus, Buddhists, Jains, and Sikhs. This Act can be considered a legal modification of the Mitakshara system and is not applicable to the property of a Hindu who is married under the Special Marriage Act to a non-Hindu. As per Section 14 of Hindu Succession Act, 1956, the women’s estate, which is one of the two types of property that existed before this Act (the other type being streedhan) was abolished. Section 6 of the Act is applied to the devolution of coparcenary property of a male Hindu who dies after the commencement of the Act, whereas, Section 8 is applied to the devolution of a self-acquired property of a male Hindu.
The 2005 amendment to this Act brought forth changes to certain sections, namely, Section 4, Section 6, Section 23, Section 24 and Section 30. Section 4 (2) of the principal Act was omitted and Section 6 of the principal Act, was modified. As per Section 6(1) of this Act, the daughter has also been made as a coparcener by birth. Through the 2005 amendment, the daughter becomes a coparcener by birth and has all rights in the same manner as the son. She has the same rights and liabilities in the said coparcener’s property as that of a son. Section 23 has been omitted under this amendment. This section previously disentitled a female heir to seek partition of a dwelling house until the male heirs choose to divide. Section 24 was omitted and the bar on certain widows from inheriting was removed. Earlier Section 24 of the principal Act barred widows of a predeceased son or brother who had remarried from inheriting. In Section 30 of the principal Act, for the words “disposed of by him”, the words “disposed of by him or by her” shall be substituted.
All these changes, in spite of their insufficiencies, were still representative of an egalitarian outlook that acknowledged the demands of women. By the primary virtue of Section 6, this amendment, in theory, grants them equal property rights. But in practice, it could not be brought to effect if the father died before the enactment of this amendment. Also, a woman cannot demand this right if the property was partitioned before Dec 20 2004(the date of introduction of the bill).
In the case of Prakash & Ors. V. Phulavati & Ors., (2016) 1 Supreme Court Cases (Civ) 549, the Supreme Court held that only the living daughters of living coparceners as on September 9, 2005 will be entitled to property rights. A similar legal stance was taken by the Delhi High Court in the case of Danamma @Suman Surpur V Amar Singh, (2018)3SCC 343, though the Supreme Court had held that the 2005 amendment confers equal property rights to both daughters and sons. The Bombay High Court in case of Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors observed that the act should be applied retrospectively unless explicitly mentioned as the words “on and from” in Section 6 (1) of the Act after the 2005 amendment shows its prospective nature.
This amendment, has fundamentally strengthened the rightful demands of women with regard to property. It lays down that the property rights of women will stand valid even upon the demise of the father before the enactment of the 2005 amendment, thus over-ruling the said restriction placed through the 2005 amendment. As per this, daughters become coparceners right from birth. Though there is a specific date for the legislation, the enactment will be done in its retrospective nature.
This judgement, in every aspect, upholds the importance of the judiciary in ensuring gender justice in society, and also asserts that gender equality is the only way forward for economic betterment of women at the familial level. And in a scenario where the radius of gender justice is being limited to a breakaway from societal notions, it is high time that we realize economic empowerment is one of the strongest pillars of sustenance against oppression.
Contemporary times are witness to an increasing demand for gender justice and acceptance in all spheres of life. Judicial conscience, political commitment and courageous enforcement are those factors upon which a nation exists. While gender justice is the ultimate goal, ensuring gender equality is one of the many means to achieve this. The means might be gender equality or gender differentiation according to the cause. And as long as the cause is free from prejudices and abounds in authentic claims, any transition is worth the struggle and any transformation is worth the strain.
Read More
.
.
.
We are now on LinkedIn! Do follow us there!
Follow us on Medium for more for International events, news, MUN tips and tricks, and detailed analysis. Get in touch with us on Social media to stay in the loop -
Facebook| Instagram|Telegram Channel |YouTube|Twitter|LinkedIn.
We also invite guest writers to publish their material via this blog!
