23rd January 2021

Confidant Classes

A Premier Judicial Service Coaching

The Supreme Court extended the right of Hindu women to be legal co-heirs

The Supreme Court extended the right of Hindu women to be legal co-heirs and to inherit ancestral property on an equal basis with male heirs.

What is the ruling?

  • A three-judge tribunal chaired by Judge Arun Mishra ruled that a Hindu woman’s right to be co-heir to ancestral property is by birth and does not depend on whether her father was alive or not when the law was enacted in 2005.
  • The Hindu The Inheritance (Amendment) Act 2005 gave Hindu women the right to be coparceners or legal heirs on the same basis as a male heir.

“Since the co-host is born, it is not necessary that the father of the co-host lives like 9.9.2005”,

says the judgment.

What is the 2005 law?

  • The Mitakshara Hindu Law School, codified as the Hindu Succession Act of 1956, regulated succession and inheritance of property, but only recognized males as legal heirs.
  • The law applies to all those who are not Muslims, Christians, Parsis or religious Jews, Buddhists, Sikhs, Jains and followers of Arya Samaj, Brahmo Samaj are also considered Hindus for the purposes of this law.
  • In an undivided Hindu family, several legal heirs across generations can coexist together.
  • Traditionally, only male descendants of a common ancestor as well as their unmarried mothers, wives and daughters are considered a common Hindu family.
  • The legal heirs jointly own the family property. Women were recognized as co-parkers or legal partners for sharing from 2005.
  • Section 6 of the law was amended that year so that the daughter of a co-parser was also co-parser of birth “in its own right, just like the son”.
  • The law also gave the daughter the same rights and responsibilities “in co-ownership that she would have if she had been a son”.
  • The law applies to ancestral property and to intestate succession of personal property, when the succession is made in accordance with the law and not by will.
  • The Law Commission report 174 also recommended this reform of Hindu inheritance law.
  • Even before the 2005 amendment, Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu had made this law change, and Kerala had abolished the common Hindu family system in 1975.

How did the case happen?

  • While the 2005 law granted equal rights to women, in many cases questions were raised as to whether the law was applied retrospectively and whether women’s rights depended on the living conditions of the father they would inherit.
  • Different Supreme Court banks had taken conflicting views on the matter. Different superior courts had also adopted different views of the superior court as enforceable precedents.
  • In Prakash v Phulwati (2015), a panel of two judges chaired by Judge AK Goel held that the benefit of the 2005 amendment could only be granted to “living daughters of living tenants” as of September 9, 2005 (date on which the amendment entered into force).
  • In February 2018, contrary to the 2015 decision, a bench of two judges chaired by Judge AK Sikri estimated that the share of a father who died in 2001 will also pass to his daughters in coparcener when dividing property in accordance with the law 2005.
  • Then, in April of the same year, another tribunal of two judges, headed by Judge R. K Agrawal, reiterated the position taken in 2015.
  • These conflicting views on bench of equal strength have led to a reference to a bench of three judges in this case. The ruling now overturns the 2015 and April 2018 verdicts.
  • It establishes the law and expands the intent of the 2005 legislation “to eliminate the discrimination contained in Article 6 of the Hindu Succession Law of 1956 by granting equal rights to girls in the Hindu co-farm of Mitakshara, as the children have it ”.

How did the court decide the case?

  • The court looked into the rights under the Mitakshara coparcenary. Since Section 6 creates an “unobstructed heritage” or a right created by birth for the daughter of the coparcener, the right cannot be limited by whether the coparcener is alive or dead when the right is operationalised.
  • The court said the 2005 amendment gave recognition of a right that was in fact accrued by the daughter at birth.
  • “The conferral of a right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.
  • Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application, they confer benefits based on the antecedent event, and the Mitakshara coparcenary shall be deemed to include a reference to a daughter as a coparcener,” the ruling said.
  • The court also directed High Courts to dispose of cases involving this issue within six months since they would have been pending for years.

What was the government’s stand?

  • Solicitor General Tushar Mehta argued in favour of an expansive reading of the law to allow equal rights for women. He referred to the objects and reasons of the 2005 amendment.
  • “The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender but was oppressive and negated the fundamental right of equality guaranteed by the Constitution of India,” he submitted.

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