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Insights into Editorial: Seal of justice

goal_of_gender_justice

Context:

The Supreme Court of India in a recent judgment has again backed the fact that the daughters cannot be deprived of their right of equality conferred upon them by Section 6 of the Hindu Succession Act, 1956.

The judgment recognizes that in a coparcenary property, the daughters have an equal right.

Supreme Court judgment on daughters’ right to property:

The Supreme Court also stated that since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

The Supreme Court has placed Hindu women’s right to inherit ancestral property beyond the pale of ambiguity  a welcome ruling and a logical culmination of a long process to weed Indian laws of patriarchal prejudice.

It was an exercise that was speeded up soon after Independence, with the framers of the Constitution inscribing the promise of gender equality in the founding-document of the nation.

They walked the talk by pushing through the Hindu Succession Act, 1956, in the teeth of fierce opposition from conservative Hindu opinion.

What is coparcenary?

A joint Hindu family means all people lineally descending from a common ancestor, including wives and unmarried daughters.

But a Hindu coparcenary is a much narrower group. It consists of the ‘propositus’ (the person from whom a line of descent is traced) and three of his descendants.

Coparcenary property is the one which is inherited by a Hindu man from his father, grandfather, or great grandfather.

The property in coparcenary is held as joint owners, and only a coparcener has a right to demand a partition of this property.

Before 2005, the coparceners included only sons, grandsons, and great grandsons who are holders of a joint property.

But the 2005 amendment to Section 6 of the Hindu Succession Act essentially gave equal rights to daughters in ancestral property.

So the amendment allowed daughters to be recognised as coparceners by birth in the family, similar to sons.

174th Law Commission report suggestions to change property laws:

  1. In 2000, the 174th Law Commission noted that “the framing of all property laws have been exclusively for the benefit of man” even though the right to property is “important for the freedom and development of a human being”.
  2. It pushed for a change in law that barred women from being considered co-parceners (or joint legal heirs) of a Hindu undivided joint family.
  3. Only male descendants of an ancestor, their mothers, wives and unmarried daughters were given that right.
  4. The commission’s report was followed through in Parliament by the 2005 amendment to the Hindu Succession Act, 1956 that said that a woman could be a co-parcener by birth “in her own right in the same manner as the son”.
  5. Nevertheless, the gap between precept and practice was manifest in several cases and in several court judgments, when the interpretations of whether the amendment could apply retrospectively or depended upon the father’s being alive in 2005 threw up conflicting answers.
  6. The three-judge bench of the SC has put an end to this confusion by emphasising again that it is a right “by birth” of a Hindu woman to become a joint heir to ancestral property.
  7. In doing so, the court has interpreted the law capaciously, keeping in mind the progressive intent behind the 2005 amendment.

 The Hindu Succession (Amendment) Act, 2005:

  1. The 174th Law Commission Report had recommended the reform in Hindu succession law.
  2. Before the 2005 amendment, Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu had made this change in the law and Kerala had abolished the Hindu Joint Family System in 1975.
  3. It gave Hindu women the right to be coparceners or joint legal heirs in the same way a male heir does.
  4. The amended act made a daughter of a coparcener also a coparcener by birth “in her own right in the same manner as the son”.
  5. The law also gave the daughter the same rights and liabilities “in the coparcenary property as she would have had if she had been a son”.
  6. It applies to ancestral property and to intestate succession in personal property where succession happens as per law and not through a will.

Government’s stand:

The Solicitor General of India has argued in favour of an expansive reading of the law to allow equal rights for women.

He criticised the Mitakshara coparcenary 1956 law because it contributed to discrimination on the ground of gender and was also oppressive and negated the fundamental right of equality (Articles 14 to 18) guaranteed by the Constitution of India.

Conclusion:

Gender justice is far from being reality in India, with several other inequalities of caste, religion and class reinforcing the secondary status of women.

Over the years, the expansion of educational and other opportunities has bent social attitudes towards gender justice, making what seemed abhorrently subversive once (the right to divorce, the end of polygamy) a matter of reasonable progress now.

But the judgment is in sync with a larger churn in Indian life, that has seen women extract similar concessions from families and religions, that involves citizens and communities using constitutional promises to push institutions towards change.

This ruling is a seal on a substantive change in the Hindu undivided family.