This article by Malavika M and Nandita Sridhar deals with the rights of women under Hindu Succession Act, 1956. The article discusses leading case laws and amendments.
Property consists of land, shares, buildings and debts owed to another person. The value attached to it is the fundamental characteristic of the Property. The meaning can be either monetary or personal. It is the right to enjoy and dispose of such things in the utmost way that one wishes.
Property rights for women facilitate gender equality, which ultimately contributes to growth. Women have no access to properties during emergencies without property rights (be it divorce or the death of a husband or any other difficult situation). Property rights provide women and their families with several advantages, including improved social security and economic autonomy.
In terms of women’s rights, land has been a big object of contention. Ownership of land and property empowers women and offers revenue and protection. Increasing knowledge and modernization have made the situation a little better over time, and in this aspect, we can now speak more about ‘equality’ too.
Much like women’s property rights elsewhere, Indian women’s property rights are considered to be discriminatory and unjustified. Gender equality has evolved over the period of time in terms of quality and quantity. The property rights of Hindu women are contentious. Hindu women’s property rights often differ depending on several factors like the marital status of the woman in the family, whether the woman is a daughter who is married or unmarried or deserted, wife or widow or mother.
In India, religious communities continue to be governed by their respective personal laws. Property rights of the citizens are also covered under this. In addition to this, there are several subgroups with local traditions and practices with respect to their own regulations governing property rights, even within the various religious groups.
II. Scope of the Act
The laws of succession in India are primarily based on religion. Before anything else, it is necessary to decide on the applicability of the decree as to what religion the deceased belonged to. As the title of the Act suggests, the Hindu Succession Act, 1956, applies to Hindus but finding out that “who is a Hindu” is in itself a difficult task. When both parents profess the same religion, Hinduism, the time to determine the child’s religion is the time of birth.
A child’s religion is determined at the time of birth, when both the parents profess the same religion, in this scenario it is Hinduism. The infant will take the religion of the parents and have the same religion before attaining the majority. A commonly asked question is the status of a child where one of the parents is a Hindu. In such cases, the concept of the child’s religion is not decided at the time of birth but the time associated with the child’s upbringing determines the child’s religion. When the child is brought up as a member of the community or culture of his/her Hindu parents, the child will be Hindu.
The Hindu Succession Act, enacted in 1956, was the first enactment of property rights among Hindus after independence, with a detailed and uniform inheritance structure and to resolve gender differences in inheritance.
Section 14 of the Act eliminated the disability of a woman to obtain and retain property as an absolute owner and transformed the right of a woman, as a limited owner, into an absolute owner of any property already owned by her on the date of commencement of the Act.
The court recognizes that a woman’s right to property through her pre-existing right was to be maintained as it lies within the scope and ambit of Section 14 of the Act.
The one question that was constantly agitated by the liberals after the enactment of the Hindu Succession Act, 1956, was regarding the right of a daughter or a married daughter to a Hindu Undivided Families coparcenary land. In order to give equal status to the sons and daughters of coparceners, the 2005 amendment was passed.
Coparcenary privileges were given prior to the 2005 amendment only to male descendants (i.e. sons) of coparceners. After the 2005 amendment, section 6 of the act allows a coparcener’s daughter the ability to be a coparcener by birth, as a right, similar to the rights of the son. The law also recognizes the same rights and liabilities which are entitled by the son.
In the case of Eramma v. Veerupana (1966 SC 1879), the Supreme Court examined the words “as full owner and not limited owner” in accordance with subsection (1) of section 14, which clearly indicates that the legislature intended to change the limited ownership of the Hindu female to full ownership. In other words, section 14(1) specifies that, by virtue of this section, a Hindu woman who, in the absence of a provision, would have been a restricted owner of the property, would now become the full owner of the property.
In the case, Prakash v. Phulavati, a two-judge bench headed by Justice A.K. Goel, passed an order stating that the 2005 amendment only favoured “living daughters of living coparceners” as on September 9, 2005. The court specifically emphasized that Section 6 of the amended act would be applicable only if the coparcener and daughter were both alive as on the date when the amendment came into force.
In a recent judgment passed by the apex court in 2018, the court held that:
“…it is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by birth”. 
According to the facts of the case, the father had passed away in 2001. Irrespective of the fact that the father had died before the 2005 amendment, section 6 of the act was applied and the two daughters were entitled to coparcenary privileges and the right to equal share in the coparcenary property.
In respect to section 8 and 9 of the act, devolution of property takes place in case of the death of a male, thereafter the property is inherited by his relatives. According to section 15 and 16 of the act, on the event of the death of the female, the devolution of property takes place according to the preferences of the deceased parents and the legal heirs of her husband. For women to be better empowered, legislation must be gender-neutral, and there should be no distinction between the order of succession and the rules of succession for men and women.
The first legislative enactment dealing with succession to the property of an interstate Hindu woman is Section 15. Before 1956, a woman’s property was according to the rules provided under the uncodified Hindu law. The Hindu Law of Inheritance (Amendment) Act, 1929, and the Hindu Women’s Right to Property Act, 1937, focused on protecting her rights, rather than concentrating on who would be entitled to take her property after her. These were the two statutes that were enacted to improve her living standards.
Sections 15 and 16 also show that in the case of a female interstate, not only is a separate succession scheme given, there is more divergence linked to the source of the acquisition of the property and consideration of her marital status, and considerations such as whether she died leaving behind children or not. With regard to the categorization of heirs, in the case of a married woman, in contrast to the whole group of her husband’s heirs, her blood relatives are given very little importance.
A significant part of the amendment was to delete Section 24. The general rules of succession in section 24, under the old law, explain the status of three widows who are entitled to inherit the property of the interstate. These three widows were the widow of a predeceased son, widow of a predeceased son and brother’s widow. This marriage disqualification is identified with those heirs who joined the family by marriage, became widows after the death of the respective male members they were married to and left the family by remarriage.
Marriage or remarriage of blood relations such as daughters, sisters, mothers have no consequence, but the marriage of the widow of the son, the widow of the son, or the widow of the brothers would mean that they would cease to be a part of the interstate family and that their inheritance would be produced in the family in which they are married. They would not be related to the Interstate as blood relatives or by marriage after remarriage and would not be entitled to be his heirs at all.
The Amending Act deleted section 24. The condition and the eligibility requirements have changed because of this. However, the citation with respect to these widows remains the same even without section 24 on paper.
Vineeta Sharma v. Rakesh Sharma (2020)
In this case, the issues placed before the court were:
- Whether the amended Section 6 of the Act of 2005 requires the coparcener to be alive as on 09.09.2020, for the daughter to claim rights in the coparcenary property?
- Whether the amended Section 6 of the Act of 2005 is prospective, retrospective or retroactive?
In order for a daughter to inherit rights over the coparcenary land, the court held that the coparcener father does not need to be alive as on 09.09.2005, as per the Amended Section 6. The Hon’ble Supreme Court held, discussing obstructed and unobstructed heritage, that the unobstructed heritage takes place by birth, while the obstructed heritage takes place after the owner’s death. Furthermore, the Hon’ble Supreme Court held that right is granted by birth under Section 6, rendering it an unhindered heritage, and therefore the coparcener father needs to be alive as of 09.09.2005 in order for the daughter to inherit rights over the coparcenary land.
The Hon’ble Supreme Court held that the amended Section 6 was of a retroactive nature. Explaining the principles of prospective, retrospective and retroactive, the Hon’ble Supreme Court held that the retroactive legislation functions on the basis of a past feature or occurrence or conditions drawn from the previous event.
Furthermore, the Court held that Section 6(1)(a) contains the principle of the coparcenary of Mitakshara’s unobstructed heritage, which is by virtue of birth and since the right is granted by birth, that is a precedent event, and provisions operate retroactively on and from the date of the Amendment Act. The Court also added that it is evident from the provision set out in Section 6(4) that the provisions of Section 6 are not retrospective.
There were many cases where women, who entitled their claim under Section 6 of the Amended Act, had been subjected to financial distress and were not given a share in the coparcenary property. However, there were many others who enjoyed the benefit of the verdict of Prakash v. Phulavati. While the decision of Vineeta Sharma is indeed praiseworthy for achieving the noble and required aim of gender equality and gender justice, the fact that the conflict took nearly 15 years to be finally resolved illustrates the long road to justice.
Malavika M, Nandita Sridhar
(VIT School of Law)
- Daughters have coparcenary rights by birth even if father died before the Hindu Succession (Amendment) Act, 2005 came into force [DETAILED REPORT], Available Here
- Under Hindu Succession Act, can an ‘ancestral property’ blend in with the ‘individual property’? Available Here
- Arjun Pal, Transformation of Women’s Rights under section 6 of the Hindu Succession Act, 1956, Available Here
- Vineeta Sharma v. Rakesh Sharma, SPECIAL LEAVE PETITION (C) NOS.17661767 OF 2020, Available Here
 V. Tulasamma & Ors. v. Sesha Reddi (1977) 3 SCC 99
 (2016) 2 SCC 36
 Danamma v. Amar, (2018) 3 SCC 343