GENDER JUSTICE : DAUGHTER’S COPARCENERY RIGHTS (Vineeta Sharma vs Rakesh Sharma on 11 August, 2020)

 – PANKAJ RAWAL[1]

Supreme Court’s verdict on women’s inheritance rights on –11^th August 2020: This will be marked as a historical change of course in the legal arena of Indian legal development.

VERDICT: On Tuesday, the Supreme Court settled its own confusion pertaining to the conflicting interpretations of the amended section of Hindu Succession Act, 1956 i.e., Section 6 (which is in force since September 9, 2005). The Apex Court made it very explicit that daughters have equal coparcenary rights in the ancestral property even if they were born before the 2005 amendment and regardless of the fact that whether their father was alive or not at the time when the law was amended in 2005. As the coparcenary is by birth, so it is not necessary that father coparcener should be living as on 9.9.2005.

Supreme Court held that ‘Hindu Succession Act 1956’ has a retrospective effect irrespective of the fact that she (daughter) was born and her father was alive or not at the time of such amendment i.e., 2005 amendment to the Hindu Succession Act, 1956.

MAIN ISSUE TO SETTLE – The principal issue which needs to be settled down was that the amendment that has been done to the Hindu Succession Act, 1956 in the year 2005, granting equal coparcenary rights to the daughters to inherit the ancestral property would have a retrospective effect or not?

LAW OF 1956 – The Mitakshara School of Hindu Law which is codified as the Hindu Succession Act, 1956 governed both the succession and the inheritance of property. But it recognized only ‘males’ as legal heirs. So traditionally daughters were not considered as coparceners in accordance with section 6 of the law of 1956.

2005 AMENDMENT SCENARIO– In the year 2005, a crucial step was taken by amending section 6 of Hindu Succession Act, 1956. As before the 2005 amendment, only male heirs were to be considered as coparceners. But this amendment has essentially marked a historical change in the milieu of “gender justice”, as it provided equal inheritance rights to the daughters also in the ancestral property. So this has recognized “daughters” as coparceners by birth in the family in the same way as sons – “A son is a son until he gets wife but a daughter is a daughter throughout her life”.

POST 2005 AMENDMENT SITUATION– While the 2005 amendment granted equal rights and liabilities to women, many disputes were arisen pertaining to the nature of the Hindu Succession (Amendment) Act, 2005: whether this law is retrospective in nature or does it have a retrospective effect or not?. And also whether the rights of women are depended on the living status of their fathers at the time of amendment or not?  Different benches of the Supreme Court have given conflicting views upon this question in various cases. Relying on such conflicting views by considering them as ‘binding precedents’ many High Courts have also decided on some cases.

In the case of Prakash v. Phulavati (2015),the decision was given by a two-judge bench headed by Justice A K Goel, it was held that if the coparcener (father) is died prior to 9 September 2005 (it is the date on which the amendment has come into force), his daughter will have no inheritance right to be entitled in the coparcenary property. So the benefit of such amendment will only be given to “living daughters of living coparceners” on 9 September 2005.

Then again in the case of Danamma v. Amar (2018), a two-judge bench headed by Justice A K Sikri has held that the daughters, in this case, will get shares in the property as coparceners even if their father died in the year 2001.

As these conflicting perspectives were given by the benches of equal strength, that will lead to the reference to the larger bench in the current case i.e., a three-judge bench in the case of  Vineeta Sharma v. Rakesh Sharma (2020).

GENDER JUSTICE: VINEETA SHARMA V. RAKESH SHARMA (2020) –  In the case of Vineeta Sharma, the Supreme Court has overruled its own decision in the case of Prakash v Phulavati (2015) and also partially upheld its own holding in the case of Danamma v. Amar (2018). The Apex Court’s verdict in this the case was marked as a “progressive step” as it cleared the ambiguities pertaining to the extent and nature of a daughter’s rights to inherit the ancestral property.

“The Hon’ble Supreme Court has taken a powerful step towards the “equality” as provided under article 14 of our Constitution,” It has clearly adjudicated on the issue of effective date of 2005 amendment, by saying that it is of no relevancy that what is the date of birth of the daughter or alternatively the date of the death of the father, whether it is prior to the amendment or post. As long as a daughter is alive post the amendment, she will be entitled to an equal right as a son in the coparcenary property.

And also Court clarified that “Coparcenery is a birthright (unobstructed heritage)”. So the same rights have to be conferred on the daughters also by birth in the same manner with the incidents of coparcenary as that of a son. And another point of re-opening of partition before 2005, can it be done or not? The Apex Court stated that a partition which has already been done before 2005 can’t be re-opened provided it was duly done in accordance with the law or it  has gone through the proper legal process as required by the law.

The Hon’ble Apex Court has also noticed that similar suits or appeals across the country were pending before different high courts and lower courts for a long time because they all were dealt with the same dilemma about nature and extent of a daughter’s rights to inherit an ancestral property vis-à-vis effective date of 2005 amendment.

As all those matters which were already been delayed because of the legal imbroglio which was due to the conflicting views of different benches of the Supreme Court. So this was directed and requested to these courts to adjudicate upon these matters and decide them within six months in consonance with the landmark judgment passed in the current case i.e., Vineeta Sharma v. Rakesh Sharma (2020).

So in my opinion also “this judgment has not only promoted gender equality as guaranteed by our constitution in the form of a fundamental right, but also it has negated the oppressive approach of the society by breaking the deadlock of the dated patriarchal system”.

 [1] STUDENT OF HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA.

Image Credit: The Economic Times