AMITY LAW SCHOOL LUCKNOW

FAMILY LAW - II

HINDU SUCCESSION ACT 1956: A Peep Into The Status Of Woman After The Amendment Of 2005

SUBMITTED TO: MRS. VIJETA DUA TANDON

SUBMITTED BY: MAYURIGUPTA B.A; LL.B (H); IV(B) A8111111069

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ACKNOWLEDGEMENT

The assignment work bears the imprint of many people, and I express my gratitude to all those who have helped me and rendered their help in all the possible ways in a completion of my assignment. No work can be successful without the guidance and blessing of elders and this work is no exception. It is a matter of immense pleasure to express my gratitude to my faculty Honble Mrs. Vijeta Dua Tandon for her guidance and excellent insights which gave direction and focus to this paper. I thank her for lending her precious time in making this assignment an authentic piece of work. I also owe sincere gratitude to the staff at library for always helping in the process of finding material and other sources for research. I am very grateful to my seniors and all the individuals involved in the subgroup for their contributions and assistance in compiling this assignment and the recommendations that go with it: they are the outcome of an open, interactive and creative cooperation. I also thank social networking site for searching the required information in precise and as per needed. How I can forget to give credit and my satisfaction to my friends. My sense of gratitude is due to AMITY LAW SCHOOL, LUCKNOW. At last, I express my heartfelt gratitude to the God Almighty, without whose blessing and motivation, the completion of this assignment would have been impossible. Thanks to all.......

Mayuri Gupta

TABLE OF CONTENTS

INTRODUCTION.............................................................................................4-5 CONSTITUTIONAL CONCERNS..................................................................6-7 SECTION 6 OF THE HINDU SUCCESSION ACT, 1956.................................8 THE HINDU SUCCESSION (AMENDMENT), ACT, 2005........................9-11 CASE LAWS IN SUPPORT OF THE AMENDMENT...............................12-14 CHANGES BROUGHT IN THE POSITION OF WOMEN (SPECIALLY FOCUSING ON SECTION 6)......................................................................15-16

COMPARATIVE STUDY OF WOMENS INHERITANCE RIGHT UNDER HINDU SUCCESSION ACT.............................................................................17

CONCLUSION AND SUGGESTION...............................................................18 BIBLIOGRAPHY...............................................................................................19

INTRODUCTION

"Women constitute half the world's population, perform nearly two-thirds of its hours, and receive one-tenth of the world's income and less than one hundredth of the property." The United Nation's Report, 1980

Women since the Vedic times were held in great regard and enjoyed various rights and privileges. She shared equal rights and obligations with her husband. However, the only discrimination they were subjected to was in matters of inheritance but they were never excluded completely from inheriting. Slowly this discrimination crept into other areas. The presence of fewer rights of women than men in Indian Personal laws is generally attributed to the sanctity of religious law. Several changes effected over the decades indicate the selective application of sanctity argument. The Hindu Succession Act came into force on 17th June 1956. It brought comprehensive changes in the law of intestate succession among Hindus compatible with the changed socio-economic scenario of the Hindu society. The long felt need of improving the position of Hindu females through an effective legislation was fulfilled and attempts were made to give equal status to females as compared to males. Various measures have been taken to bring some reforms far reaching reforms in the system of Hindu inheritance and succession. The Government after passing the Hindu Womens Right to Property Act, 1937 had set up Rau Committee to suggest reforms. The Committee after studying the existing rules of Hindu Succession suggested some revolutionary changes in the system in order to remove inequalities and injustice to womenfolk amongst Hindus and accordingly recommended for the codification of the law relating to succession and codification of Hindu law in successive stages.

On the basis of the suggestions and recommendations of the Rau Committee several legislations were adopted by the legislature, the most outstanding of which is Hindu Succession Act 1956 passed to meet the needs of a progressive Hindu society. Many changes were brought about with the onset of Hindu Succession Act 1956 that gave women greater rights but they were still denied the important coparcenary rights. Subsequently, a few States enacted their own laws for division of ancestral property. In what is known as the Kerala model, the concept of coparcenary was abolished and according to the Kerala Joint Family System (Abolition) Act, 1975, the heirs (male and female) do not acquire property by birth but only hold it as tenants as if a partition has taken place. Andhra Pradesh [The Hindu Succession (Andhra Pradesh Amendment) Act, 1986], Tamil Nadu [The Hindu Succession (Tamil Nadu Amendment) Act, 1989] , Karnataka [The Hindu Succession (Karnataka Amendment) Act, 1994] , and Maharashtra [The Hindu Succession (Maharashtra Amendment) Act, 1994] also enacted laws, where daughters were granted coparcener' rights or a claim on ancestral property by birth as the sons. In 2000, the 174th report of the 15th Law Commission suggested amendments to correct the discrimination against women, and this report forms the basis of the present Act. Discrimination against women was the key issue before the Law Commission. The amendment made in 2005 gives women equal rights in the inheritance of ancestral wealth, something reserved only for male heirs earlier. It indeed, is a significant step in bringing the Hindu Law of inheritance in accord with the constitutional principle of equality. Now, as per the amendment, Section 6 of the Hindu Succession Act, 1956 gives equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. The amendment was made because there was an urgent need for certainty in law.

CONSTITUTIONAL CONCERNS

Due to these inequalities with regard to women and property rights, the very constitutionality of the Act is questionable. Part III of the Indian Constitution guarantees to India's citizens certain fundamental rights, and Article 13 therein voids "laws in force" that are in derogation of these rights.1 The Hindu Succession Act seems to contravene some of these fundamental rights, particularly the right to equality between women and men. Article 14 says,"The State shall not deny to any person equality before the law or the equal protection of the laws."2 Article 15(1) prohibits discrimination on grounds of sex, and Article 15(3) allows the State to make special provisions for women and children3. Part IV of the Constitution, "Directive Principles of State Policy," includes a provision mandating the State to direct its policies towards securing equal economic rights to all citizens, regardless of sex.4 In combination with the "Fundamental Rights" section, the Constitution seems to set forth inalienable rights that should force both Parliament and the judiciary to amend the current state of succession rights for Hindu females. However, this has not been the case, presumably due to Articles 25 and 26 of the Constitution. These articles guarantee to all Indians the liberty to freely practice their religions and grant to religious denominations the freedom to manage their own affairs, providing the justification for the existence of a separate system of personal laws based on religion.5 The Parliament has the power under Article 44 to amend the current personal law system and create a Uniform Civil Code, but this power does not extend to the courts. Thus, the courts have no power to use gender
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Indian Constitution, Part III, Article 31. Ibid. Part.III, Article 14. Ibid. Part. III, Articles. 15(1) and15(3). See Ibid. Part. IV, Article. 39(d). See John H. Mansfield, The Personal Laws or a Uniform Civil Code?, in RELIGION AND

LAW IN INDEPENDENT INDIA 139, 153 (Robert D. Baird ed., 1993).

discrimination claims to declare the personal law system to be per se unconstitutional.6 In P.E. Mathew v. Union of India, the High Court of Kerala upheld certain provisions of the Indian Divorce Act that created an extra burden only for Christians, who challenged the Divorce Act under the "Fundamental Rights" articles of the Constitution.7 The Court held that personal laws do not fall into the category of "laws" or "laws in force" encompassed by Article 13 in its definition of laws subject to fundamental rights limitations.8 This same holding probably also applies to claims of gender discrimination in personal laws.9 Although the Constitution leaves room for abolishing religious personal laws through Article 44's mandate for a Uniform Civil Code, it is not necessarily unconstitutional to continue giving effect to these laws, presumably because of the power of Articles 25 and 26 protecting religious custom and practice. The Law Commission of India (see Part IV below) argues that this stance on the conflict between fundamental rights and the personal laws is a "blatant disregard and unjustified violation" of the equal rights guaranteed to women by the Indian Constitution.10 The courts should take a more activist reading of Articles 13, 14, and 15, as well as of the Constitution's "Directive Principles of State Policy," in order to create greater economic protections for women. The judiciary should protect women's economic rights through the laws that are already in force, using as a starting point Parliament's intent in codifying the Succession Act in 1956 to include greater rights for women.11

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Supra Note 5 A.I.R. 1999 (Ker.) 345, 353. Ibid Supra Note 5, At 153 Law Commission Report Ibid

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SECTION 6 OF THE HINDU SUCCESSION ACT, 1956 (RESTATED FOR CONVENIENCE)Devolution Of Interest In Coparcenary Property. Whenever a male Hindu dies after the commencement of this Act, having at the time of his death, an interest in the Mitakshara Coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative, specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by survivorship. Explanation 1.For the purpose of this section, the interest of a Hindu

Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2.Nothing contained in the proviso to this section shall be

construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.

THE HINDU SUCCESSION (AMENDMENT) ACT, 2005[6. Devolution Of Interest In Coparcenary Property.(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-(a) by birth become a coparcener in her own right in the same manner as the son ; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,9

(a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the predeceased son or a pre-deceased daughter, as the case may be. Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or greatgrandson for the recovery of any debt due from his father, grandfather or greatgrandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothingcontained in this sub-section shall affect-(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the HinduSuccession (Amendment) Act, 2005 had not been enacted.

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Explanation.- For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December 2004. Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition affected by a decree of a court.]

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CASE LAWS IN SUPPORT OF THE AMENDMENT-

Even after passing of the Amending Act and substitution of S. 6, a number of questions were raised in the legal circles as to whether the Amending Act was prospective or retrospective and whether a daughter born before coming into force of the Amending Act i.e., 9th September 2005 was entitled to benefit under the newly incorporated S. 6 of the Act. There were divergent views and conflicting arguments. Fortunately, these issues have now come up before our Courts and we now have the benefit of some judicial pronouncements on the effect of the new S. 6 of the Act.

In Pravat Chandra Pattnaik and Others vs. Sarat Chandra Pattnaik and Another12, the Orissa High Court had occasion to consider the effect of the Amending Act and the new S. 6 of the Act. It was a case relating to partition of Hindu Mitakshara coparcenary property. After decision by the lower Court, an appeal was preferred to the High Court. The Court held that the Amending Act was enacted to remove the discrimination contained in S. 6 of the Act by giving equal rights and liabilities to the daughters in the Hindu Mitakshara Coparcenary property as the sons have. The Amending Act came into force with effect from 99-2005 and the statutory provisions create new right. The provisions are not expressly made retrospective by the Legislature. Thus, the Act itself is very clear and there is no ambiguity in its provisions. The law is well settled that where the statute's meaning is clear and explicit, words cannot be interpolated. The words used in provisions are not bearing more than one meaning. The amended Act shall be read with the intention of the Legislature to come to a reasonable conclusion. Thus, looking into the substance of the provisions and on conjoint reading, Ss.(1) and (5) of S. 6 of the Act are clear and one can come to a conclusion that the Act is prospective. It creates substantive right in favour of the daughter. The daughter got a right of coparcener from the date when the amended
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AIR 2008 Orissa 133

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Act came into force i.e., 9-9-2005. The Court also did not accept the contention that only the daughters, who are born after 2005, will be treated as coparceners. The Court held that if the provision of the Act is read with the intention of the legislation, the irresistible conclusion is that S. 6 (as amended) rather gives a right to the daughter as coparcener, from the year 2005, whenever they may have been born. The daughters are entitled to a share equal with the son as a coparcener.

The same issue also arose before the High Court of Karnataka in Sugalabai v. Gundappa A. Maradi and Others13. The Court was considering appeals where pending the appeals the Amending Act was passed by the Parliament. The Court held that as soon as the Amending Act was brought into force, the daughter of a coparcener becomes, by birth, a coparcener in her own right in the same manner as the son. Since the change in the law had already come into effect during the pendency of the appeals, it is the changed law that will have to be made applicable to the case. The daughter, therefore, by birth becomes a coparcener and that there is nothing in the Amending Act to indicate that the same will be applicable in respect of a daughter born on and after the commencement of the Amending Act. In coming to the conclusion, the Court referred to the following principles of interpretation of statutes as laid down by the Apex Court : (1) Statutory provisions which create or take away substantive rights are ordinarily prospective. They can be retrospective if made so expressly or by necessary implication and the retrospective operation must be limited only to the extent to which it has been so made either expressly or by necessary implication. (2) The intention of the Legislature has to be gathered from the words used by it, giving them their plain, normal, grammatical meaning. (3) If any provision of a legislation, the purpose of which is to benefit a particular class of persons is ambiguous so that it is capable of two meanings, the meaning which preserves the benefits should be adopted. (4) If the strict grammatical interpretation gives rise to an absurdity or inconsistency, such interpretation should be discarded and an interpretation

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ILR 2007 KAR 4790; 2008 (2) Kar LJ 406

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which will give effect to the purpose will be put on the words, if necessary, even by modification of the language used. The Court also applied the principles stated in American Jurisprudence14 quoted with approval by the Supreme Court in S. R. Bommai v. Union of India15 .One additional issue was raised before the Court in this case as to whether there was a conflict between the Amending Act and the provisions of the Hindu Succession (Karnataka Amendment) Act, 1994. The Court held that When there is a conflict between the State law and the subsequent law made by the Parliament on an Entry in Concurrent List, it is the law made by the Parliament that will prevail over the State Law even though the State law was passed after obtaining assent of the President and it is not necessary that law made by the Parliament should expressly repeal a State law. It is submitted that, in view of the aforesaid decisions of the Orissa and the Karnataka High Courts, the issue is presently settled and that the daughter of a coparcener becomes, by birth, a coparcener in her own right in the same manner as the son, irrespective of whether she was born before or after the Amending Act came into force.

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2nd Edition, Vol. 73, Page 434, Part 366. AIR 1994 SC 1980.

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CHANGES BROUGHT IN THE POSITION OF THE WOMEN (SPECIFICALLY FOCUSING ON SECTION 6):

Out of many significant benefits brought in for women, one of the significant benefit has been to make women coparcenary (right by birth) in Mitakshara joint family property. Earlier the female heir only had a deceased man's notional portion. With this amendment, both male and female will get equal rights. In a major blow to patriarchy, centuries-old customary Hindu law in the shape of the exclusive male Mitakshara coparcenary has been breached throughout the country. The preferential right by birth of sons in joint family property, with the offering of "shradha" for the spiritual benefit and solace of ancestors, has for centuries been considered sacred and inviolate. It has also played a major role in the obvious preference for sons in Indian society. This amendment, in one fell swoop, has made the daughter a member of the coparcenary and is a significant advancement towards gender equality. The significant change of making all daughters (including married ones) coparceners in joint family property - has been of a of great importance for women, both economically and symbolically. Economically, it can enhance women's security, by giving them birthrights in property that cannot be willed away by men. In a male-biased society where wills often disinherit women, this is a substantial gain. Also, as noted, women can become kartas of the property. Symbolically, all this signals that daughters and sons are equally important members of the parental family. It undermines the notion that after marriage the daughter belongs only to her husband's family. If her marriage breaks down, she can now return to her birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.

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Now under the amendment, daughters will now get a share equal to that of sons at the time of the notional partition, just before the death of the father, and an equal share of the father's separate share and equal distribution of undivided interest in co-parcenery property. However, the position of the mother vis--vis the coparcenary stays the same. She, not being a member of the coparcenary, will not get a share at the time of the notional partition. The mother will be entitled to an equal share with other Class I heirs only from the separate share of the father computed at the time of the notional partition. In effect, the actual share of the mother will go down, as the separate share of the father will be less as the property will now be equally divided between father, sons and daughters in the notional partition.

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COMPARATIVE

STUDY

OF

WOMENS

INHERITANCE

RIGHT, UNDER HINDU SUCCESSION ACT16 1. The Deceased Mans Separate Property.
Before the passing of HSA Amendment, 2005: Equal shares for class I heirs, viz., son, daughter, widow, mother and specified heirs of predeceased sons and daughters. The heirs of both the sexes have full right to alienate inherited property. After the passing of HSA Amendment, 2005: No change, except for expanding the list of class I heirs for gender equality. No change.

2. Agricultural Land (Section 4(2)

Before the passing of HSA Amendment, 2005:Inheritance of agricultural land is subject to state-level tenurial laws and not to HSA. Many of the tenurial law specify inheritance rules that are highly gender unequal. After the passing of HSA Amendment, 2005:Inheritance rights in all agricultural land are subject to the HSA(overriding state laws inconsistent with the Act), and so effectively are now gender equal.

3. The Mitakshara oint Family Property (Section6)

Before the passing of HSA Amendment, 2005:Class I heirs(males and females)as specified above have equal claims in mans notional share of the undivided joint family property. A man can however always will his notional share. Son has additional independent birth right in joint family property, as a coparcener. Daughters cannot be coparcener. After the passing of HSA Amendment, 2005:No change except the specification of Class I heirs. Substituted Section 6 : Sons and daughters both have independent birth rights (and liabilities) as coparceners in joint family property. These shares cannot be willed away by the father.

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Landmark Step to gender equality By Bina Agarwal, The Hindu, September 25, 2005, (Weekly Edition,2).

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CONCLUSION AND SUGGESTION:

1. One stems from retaining the Mitaksara joint property system. Making daughters coparceners will decrease the shares of other Class I female heirs, such as the deceased's widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. In States where the wife takes a share on partition, as in Maharashtra, the widow's potential share will now equal the son's and daughter's. But where the wife takes no share on partition, as in Tamil Nadu or Andhra Pradesh, the widow's potential share will fall below the daughter's. 2. Co-parcenary remains a primary entitlement of males; the law, no doubt provides for equal division of the male co-parcener's share on his death between all heirs, male and female; still, the law puts the male heirs on a higher footing by providing that they shall inherit an additional independent share in co-parcenary property over and above what they inherit equally with female heirs; the very concept of co-parcenary is that of an exclusive male membership club and therefore should be abolished. But such abolition needed to be dovetailed with partially restricting the right to will (say to 1/3 of the property). Such restrictions are common in several European countries. Otherwise women may inherit little, as wills often disinherit them. However, since the 2005 Act does not touch testamentary freedom, retaining the Mitaksara system and making daughters coparceners, while not the ideal solution, at least provides women assured shares in joint family property (if we include landholdings, the numbers benefiting could be large). 3. If a Hindu female dies intestate, her property devolves first to husband's heirs,then to husband's father's heirs and finally only to mother's heirs; thus the intestate Hindu female property is kept within the husband's lien. Another reason for having an all India legislation is that if the Joint Family has properties in two states, one which is governed by the Amending Act and the other not so governed, it may result in two Kartas, one a daughter and the other a son. Difficulties pertaining to territorial application of Amending Act will also arise. Thus is the need for an all India Act or Uniform Civil Code more immediate.

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BIBLIOGRAPHY BOOKS REFFERED: DR.U.P.D.KESARI; MODERN HINDU LAW DR. PARAS DIWAN; FAMILY LAW P.K.DAS; NEW LAW ON HINDU SUCCESSION MULLA; PRINCIPLES OF HINDU LAW ARTICLES REFFERED: 174th Report of Law Commission of India under the Chairmanship of Justice B.P. Jeevan Reddy, dated 5th May, 2000. 7th Report of Parliamentary Standing Committee, dated 13th May, 2005.

URLs REFFERED: www.hindu.com/2006/02/06/stories.htm www.indiainfoline.com/lega/feat/nomin.html www.ebc-india.com/lawyer/articles.htm www.prayer.de/dharmashastra.htm www.jkhighcourt.nic.in www.indiankanoon.com www.scconline.com www.lawyersclubonline.com www.legaltrigger.com

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