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A giant step to address gender injustice

  • By granting women equal right in Hindu joint family property with retrospective effect, the Supreme Court has removed the last vestiges of gender discrimination in coparcenary rights that had lingered on despite a change in law.

The Supreme Court has removed the last vestiges of gender discrimination in coparcenary rights through a judgement that will bestow on daughters an equal right to joint family property retrospectively under the Hindu Succession Act, 1956.

Under an amendment to the Act in 2005, daughters had been given an equal right. But there was confusion on whether the father needed to be alive at the time of the law being amended for the daughter's entitlement to such property. Also, whether the amendment should apply with retrospective effect.

This confusion arose when the Supreme Court in Prakash vs Phulavati held that the amendment would not apply retrospectively, or in the past, to the law, which was codified as long back as in 1956. Nor would it apply if the father coparcener—someone who had a right to the property prior to the amendment—had died by the time the change became effective.

This was because prior to 2005, the Hindu law (Mitakshara—which is applicable pan-India) recognized only sons, grandsons and great grandsons, or up to three lineal male descendants, as the holders of joint property.

Such descendants were recognized as coparceners, or someone who were conferred the right to inheritance from birth, and could call for a partition of the joint property.

While the amendment to the law in 2005 granted daughters the right as coparceners, the confusion over whether their father needed to be alive at the time the law was modified meant that a majority of women were effectively denied their right.

With the Supreme Court's ruling on 11 August in Vineeta Sharma vs Rakesh Sharma that the amended Act will be applicable retrospectively, the clock has been set back and addressed a historical injustice to women.

The patriarchal law that was prevailing prior to 2005 traced its origins to the age-old belief that women would belong to another family by marriage, and were not deserving of family property. By upholding the rights of daughters to be as equal as sons, the court has extended women the respect and right due to them.

However, cases that had already been settled by a registered deed won't be reopened. The ruling will apply largely to pending cases of settlement of joint Hindu family property.

This judgment realizes the true intent and spirit of the 2005 amendment, which was to bring parity in the rights of daughters and sons. It's a giant leap towards equality and upliftment of women's rights.

The judgement in Prakash vs Phulavati was right on one account though. That is the female successor must have been alive on the date of 2005 amendment to claim coparcenary right. Otherwise, the verdict of the case has been overruled.

The latest ruling also means that if a daughter, who has the right to be a coparcener in Hindu family law, seeks a partition or a share, the same cannot be denied on the basis of an oral family settlement. Such a right can only be denied if the oral settlement is supported by substantial documents.

The court does say that any suit for partition awaiting final decree has to be disposed off with these norms in the latest judgement. The court also lays down the provisions of Limitation Act that is applicable for female successors to claim the benefits of the 2005 amendment. Any pending suit on this matter must be disposed off within six months following the parameters of the judgement.

With the latest ruling recognising women's right as coparceners retrospectiely, the fundamental right to equality under the Indian Constitution has been upheld now in the truest sense and translated into ground reality.

The author is partner, The Law Point, and former chairperson, National Commission for Women

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