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Towards gender equality

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Article 14 of the Constitution guarantees equality to all citizens of India. However, even 73 years after Independence, this seems like a far-fetched dream for many women. The Supreme Court’s judgment in the case of Vineeta Sharma v Rakesh Sharma took a step towards gender equality. The court has set the record straight on the contentious issue of coparcenary rights of daughters, which gives them the same right to inherit ancestral property as a son and to ask for a partition of the coparcenary property.

The court has given them the right to be a coparcenor by birth irrespective of whether they were born before or after the 2005 amendment to the Hindu Succession Act, 1956. The court has clarified that the father need not be alive at the time when the amendment came into force, thereby overruling Prakash v Phulvati (2016) and Mangammal v T.B. Raju (2018). In not requiring the father to be alive at the time of the amendment, the court has protected the rights of a whole generation of women who would otherwise have been deprived of their right to coparcenary property.

Section 6 (5) of Hindu Succession Act, 1956 provides a carve-out to partitions that have taken place before December 20, 2004 from the application of the amendment which gives coparcenary rights to daughters. To comply with this, a partition is considered to have duly taken place only if a deed of partition is duly executed and registered under the Registration Act, 1908, or it is effected by a decree of a court. The landmark verdict goes on to emphasise these provisions and this higher burden of proof has been considered essential to prevent fraudulent or false claims of partition by families to deprive daughters of their rights. The burden of proof for proving a partition is higher than before the 2005 amendment, despite the court providing a leeway with respect to oral partitions supported by public documents which may be accepted. The court has reiterated that a partition is to be considered as done only when the final decree has been passed and daughters are to be given their rights in case a preliminary decree has been passed in the case.

The judgment throws a spanner in all partitions that have occurred subsequent to the cut-off date of December 20, 2004 without giving daughters these rights due to earlier interpretations of the provision by the Supreme Court. This problem will be faced in scenarios like in the case of a woman whose father may have died before 2005 and subsequently, there may have been either a partition before December 20, 2004 which does not discharge the high burden of proof (as was customary and the prevalent practice before the 2005 Amendment) or any partition after 2005. In such a scenario, the woman would not have got her share in the coparcenary property in accordance with the earlier judicial interpretation of the statute which did not give coparcenary rights to women whose father had died before the 2005 amendment. The rights that have accrued out of all these partitions are now on tenuous grounds and can be contested. Any alienation of property done subsequent to these partitions will also face the same fate. The lack of clarity on the practical implementation of the decision of the Supreme Court can open a Pandora’s box of litigation and property disputes.

While this judgment is a step in the right direction, there is still a long way to go before women can be said to have the same inheritance rights as men under Hindu law. Despite pronouncing what is being hailed as a “progressive” judgment, the court has failed to overrule the decision in the case of Uttam v Saubhag Singh (2016). In this case, the court held that on the death of a coparcenor, the property devolved to his widow and children as separate property and not as ancestral property. This would in effect mean that if a coparcenor died any time after 1956, the coparcenary would come to an end and the interest that was held by the various coparcenors on that day would crystallise and become fixed. This would give the sons and the widow greater inheritance rights than daughters in accordance with the case of Gurupad Khandappa Magdum v Hirabai Khandappa Magdum (1981) which gave widows equal rights as the sons. Here, if the coparcenary interest of the Hindu male was 99 units and he died leaving behind a widow, a son and a daughter, the widow and the son would get 44 units each while the daughter would only be entitled to 11 units. It would also mean the end of the concept of survivorship. The share of the particular coparcenor would devolve on his heirs as their separate property. In such a scenario, there is no coparcenary property left in 2005 for women to claim a share in and they do not receive their rights. This judgment, though assailed, has not been overruled till date. The application of the ratio of this judgment would effectively nullify the right given to women to become coparcenors and impede the complete application of the judgment in Vineeta Sharma v Rakesh Sharma.

Further, while the case has given women the right to become a coparcenor, the rules of succession to a Hindu female are still the same as those brought about by the Hindu Succession Act, 1956. The section on devolution of coparcenary interest deals with what happens to the interest of a Hindu male but does not clarify the position with respect to Hindu females. Can her children be a part of the coparcenary while she is alive as is the case with Hindu males? If so, would this be considered ancestral property or separate property in the hands of her children, given that ancestral property has been defined as property inherited from your father, father’s father or father’s father’s father only?

Will the provisions for Hindu male in this respect be applicable to Hindu females? Even if it is assumed to be the case, the Act provides for separate intestate heirs for males and females. For males, the heirs are divided by classes with the widow, descendants and their widows (if male) getting preference over relations through their parents. However, for a Hindu female, the order followed descendants and widower and then the heirs of the husband. In case none of the above is present, only then the right accrues to the father and mother and their heirs, respectively. However, in this case, since the coparcenary interest comes from the father, in the absence of any descendants, goes directly to the heirs of the parents, to the exclusion of the widower.

This problem is further exacerbated, when dealing with self-acquired property of a Hindu female. The 1956 Act came about at a time when it was almost impossible for women to have self-acquired property and gender equality was still a far cry. Unless the property is inherited from her parents, the heirs of her husband have a greater right to the property than her own relatives who are not her descendants. This provision is problematic as was seen in the case of Omprakash v Radhacharan (2009). In this case, a Hindu female was asked to leave her matrimonial house on the death of her husband (as a widow). With support from her parents and determination, she turned her fortune around with self-acquired property. Decades later when she died intestate, which is without leaving behind a will, the matrimonial family decided to stake a claim in her property based on the provisions of the Hindu Succession Act that have them, as the heirs of her husband, inheritance right over her parents and her relatives. Although emotionally, it seems like the matrimonial family should not have any rights for their treatment of her, according to the statute they were right and the court decided in their favour. Thus, this discriminatory provision of the statute is still valid today despite being called unconstitutional by the Bombay High Court.

The judgment in the case of Vineeta Sharma v Rakesh Sharma is a step in the right direction but there is a long way to go before the Hindu Succession Act, 1956 can be considered to be a truly gender neutral legislation.

(Arshita Aggarwal is an alumna of the National Law School of India University, Bangalore and currently an Associate at a leading law firm in India. She can be contacted at arshitaagg@gmail.com)


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Printable version | Jan 23, 2022 3:53:04 AM | https://www.thehindu.com/opinion/open-page/towards-gender-equality/article32530848.ece

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