Daughter’s Right: Journey from 1956 to 2020

“Once a daughter, always a daughter. A son is a son till he is married”. This was quoted by the Supreme Court on 11 August 2020 in a landmark judgement in the case of Vineeta Sharma v. Rakesh Sharma. The decision of the Supreme Court gave a new meaning to the property rights given to a daughter in her father’s property. The Court held that daughters will have equal coparcenary rights in Hindu Undivided (HUF) properties even if they were born before 2005 Amendment of the Hindu Succession Act.

It has taken a long time to reach this point and it all started from 1956. The Hindu Succession Act, 1956 which was based on the Hindu Mitakshara School governed the succession and property inheritance for the Hindus but it only gave these succession and inheritance rights to males as legal heirs. Under the Hindu Undivided Family (HUF), coparcenary property is one which is inherited by a Hindu from his/her father or grandfather or great-grandfather.

Before 2005, daughters were not a part of coparcenary, so they were not able to inherit the property. The 1956 Act was amended in 2005 under which Section 6 was amended to make a daughter of a coparcener as a coparcener by birth same like a son and giving her rights and liabilities which may be given to her if she was a son. This law is applicable only to ancestral property and not to property through will. There were many questions raised after amendment of 2005 including whether the rights of the daughters depended on the father of being living at the time of inheritance of the property. There were different views given by Supreme Court in different cases.

One of the cases which was talked about was Prakash v. Phulwati (2015) in which was held that daughters did not have any right on the coparcener property if the father (coparcener) has passed before 9 September 2005. The question raised for Section 6 were put to rest in the case of Prakash v. Phulwati. One of the cases which was talked about was Prakash v. Phulwati (2015) in which was held that daughters did not have any right on the coparcenary property if the father (coparcener) has passed before 9 September 2005. The question raised for Section 6 were put to rest in the case of Prakash v. Phulwati.

But it came back into picture by the Supreme Court in Danamma v. Amar (2018) where the Supreme Court held that although suit was filed in 2002, the preliminary decree was passed in 2007 and therefore the daughters were entitled to the property under the Amendment Act of 2005. In this case the Supreme Court while giving the judgement relied on the case of Ganduri Koteshwaramma & Anr. v. Chakiri Anadi & Anr. (2011), where it was held that a daughter’s right is not lost in coparcenary property just because a preliminary decree was passed in the suit of partition. This decision of the Supreme Court was contradicting to the decision in the case of Prakash v. Phulwati. The court by fixing the date as 9 September 2005 in Prakash v. Phulwati solidified that either the daughter has rights in the coparcenary property or not which is dependent on the date of death of the father. So, a father if is not alive on the date after 9 September 2005 then there is no right whether the suit is pending or not.

In the recent judgement of Vineeta Sharma v. Rakesh Sharma the court has ruled that a Hindu woman has a joint right of a legal heir in her ancestral or coparcenary property by birth and it not depends on whether the father is alive or not, which overrules the judgement of Prakash v. Phulwati. The Supreme Court also directed all the High Courts to dispose the cases which have been pending for years now within six months. The court also clarified some questions that if there is an unregistered oral partition without proper documents then it will not be recognized as statutory mode of partition and if a property was written already in the name of an heir before the amendment act then the woman will not be allowed to claim any right or share in the property.

The judgement has made a strong statement in providing an achievement for gender equality but it also took almost 15 years from 2005 in achieving this. The court has followed the Article 19 of the Constitution of India by giving the daughters equal property rights and has removed the male supremacy and dominance over the ancestral property in Hindus. This decision is a boon for the women of those families who are lacking economic resources and are pushed aside by the male members of the family.

This landmark judgement is a very progressive step towards providing equal property to the Hindu women but still it does not give a guarantee that Indian families will give these rights in their property to the women of their family as we all know the patriarchal nature of the society which is very deep-rooted in the minds of the families to pass on their ancestral properties to their sons or male heirs. So, it might be possible that most of the families might write their wills by bequeathing their assets or properties to their male heirs clearly ignoring the decision of the Supreme Court.

As Helen Clerk has said – “Any serious shift towards more sustainable societies has to include gender equality.”, the judgement will only be successful in application when there is change of this patriarchal deep-rooted mindset and most of the women are not even aware of these rights who are coming from rural areas which makes it important that there should be awareness about these rights.

Author Details: Kashish Yadav