RIGHT OF HINDU WOMEN IN COPARCENARY PROPERTY AFTER THE 2005 AMENDMENT
RIGHT OF HINDU WOMEN IN COPARCENARY PROPERTY AFTER THE 2005 AMENDMENT
Introduction
Earlier, Hindu women were denied their equal rights to ancestral property under the Mitakshara School of Hindu law. The Hindu joint family was based on patriarchal society where only male descendants had the right of inheriting the ancestral property. This exclusive domain is known as coparcenary excluded women from equal participation. Thus women were not entitled to inherit, manage and claim a partition of family property.
But however with Hindu Succession (Amendment) Act, 2005, a change has been made and now daughters were identified as coparceners for the first time and they would have equal birthright to ancestor property-like sons. It was an amendment in Section 6 of the Hindu Succession Act, 1956 (HSA) and a step as far as property law and gender justice in India was concerned.
What is Coparcenary Property?
Under traditional Hindu law, especially the Mitakshara School of Hindu law, the coparcenary property could only be inherited by a restrictive range of male members, by the son, grandson, and great-grandson of a male ancestor. The males were only the people who could demand partition, manage their properties or inherit birthrights.
Prior to the amendment in 2005:
Women were legal heirs and not coparceners.
Daughters have no right to inherit ancestral property.
The system still emulated the male-only inheritance system which was highly traditional and customarily based.
The 2005 Amendment: A landmark in legal Reform
The Hindu Succession (Amendment) Act, 2005 brought changes to the Section 6 of the HSA effectively destroying the coparcenary framework of male-only coparcenary. The major points about this reform are:
Equal Coparcenary Right- The position of daughters has changed now they have equal rights as sons in coparcenary property. They can:
Inherit property by birth
Demand partition
Become Karta (manager) of the HUF
Right in Agricultural Land: In the earlier times the daughters were debarred by the state laws to inherit agricultural land. The amendment makes rights uniform, including that of rural property, a crucial stage to economic equality of women.
Shared Liabilities: The responsibility of managing and maintaining joint family property is also accorded to daughters who are now coparceners.
Retrospective Effect: Though enacted in 2005, the amendment has been retrospective to the daughters (both before or after amendment) through judicial pronouncement since, through the amendment, the property could not have been divided prior to December 20, 2004.
The HSA Section 6: Major Legal Provisions
Section 6(1): A daughter of a coparcener is born a coparcener, like a son.
Section 6(3): In the event of death of a coparcener, the property of the HUF will devolve the property equally, between the sons and the daughters of the coparcener including the children of predeceased female coparceners.
Judicial Interpretation
Consideration that the amendment of 2005 is prospective and also applicable only when the father (coparcener) was alive on September 9, 2005
This goes against the earlier Phulavati judgement, as it granted daughters coparcenary rights even when the father had passed away before 2005, leading to confusion and uncertainty in the law.
Vineeta Sharma v. Rakesh Sharma (2020)
A three-judge Supreme Court bench overruled Phulavati and settled the law:
“Daughters are themselves coparceners by birth regardless of whether the father survived till the date of the amendment.”
It was with this kind of decision that the amendment was retrospective in nature and daughters born before or after 2005 should also have equal rights and liabilities.
Issues of Implementation
Even though there is a law, the law has been found on tattered grounds:
Lack of awareness: Many women especially in rural areas still don’t know they have a right to demand partition.
Cultural resistance: Culture resistance is also an obstacle as daughters are socially disadvantaged and they do not feel free to claim their right to their property as opposed to their male relatives.
Delays by bureaucrats: The revenue authorities and registrars might be reluctant to make records by name of the women.
Judicial delays: Daughters' cases usually take ages in court and end up settling in court because of pressure.
It is more than a change of property law: the 2005 amendment is a step towards gender justice. It questions centuries-old traditions and confirms the economic power of a daughter. This right may enable the women to become self-reliant socially and economically in the rural areas which still consider land as the major asset.
Conclusion
Obtaining the status of being equal coparceners under Hindu law is deemed a landmark decision in the process of gender justice the Indian nation currently undergoes. It changes the family system of inheritances not only on the level of law, but also the social. Although, women are now granted equal right to ancestral property although they have a right, equality still requires action, enjoinment by society in general, and transformation of the patriarchal ways of thinking.
With the sustenance of these privileges in courts, with rising awareness, the 2005 coparcenary reform is a testimony to progressive change in law, which has given strength to Hindu women from generation to generation.
Closing Credits
Author: Arpita Gupta
"The views expressed are personal. This article is intended for educational purposes and public discourse. Feedback and constructive criticism are welcome!"
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