SC makes landmark judgment on property inheritance for Hindu women

Gangtok, August 13: The Supreme Court of India on August 11, expanded the Hindu women’s right to be the coparcener i.e. a person who shares equally with others in the inheritance of an undivided estate or in the rights to it and inherit ancestral property on terms equal to the male heirs.

SC makes landmark judgment on property inheritance for Hindu women

After Tuesday’s ruling of the Supreme Court which was chaired by a three-judge bench headed by Justice Arun Mishra, it has now been decided that a Hindu woman’s right to be a joint heir to the 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 Supreme Court through this landmark decision has expanded and promoted the earlier amendments which were implemented in the Hindu Succession (Amendment) Act, 2005 through which the discrimination was removed as mentioned in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters.

The Mitakshara school of Hindu law originated as the Hindu Succession Act, 1956 which governed succession and inheritance of property, this original act only recognized males members as legal heirs. While, Buddhists, Sikhs, Jains, and followers of Arya Samaj, Brahmo Samaj are also considered Hindus for the purposes of this law. and this law applied to everyone who was not a Muslim, Christian, Parsi, or Jew by religion.  

This was followed by the Hindu Succession (Amendment) Act, 2005 (39 of 2005) which was enacted to remove gender discriminatory provisions in its predecessor- the Hindu Succession Act, 1956.

Under the 2005 amendment, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. Section 6 of the Act was amended in 2005 to make a daughter of a coparcener also a coparcener by birth ‘in her own right in the same manner as the son.’ 

The daughter would have the same rights in the coparcenary property (ancestral property of the Hindu undivided family) as a son. This amendment also repeals Section 23 of the Hindu Succession Act which disentitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares.

Section 24 of the Act which denied rights of a widow to inherit her husband‟s property upon her re-marriage had been repealed. This Act had brought about a central amendment that was applicable to all the state governments as well. States like- Andhra Pradesh, Karnataka, Maharashtra, and Tamil Nadu had already made changes in this law, way before the 2005 amendment.

Along with the decision made by the Supreme Court on August 11 on a Hindu woman’s right to be a joint heir to the 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 Supreme Court has further decided 

That the amended Hindu Succession Act, which gives daughters equal rights to ancestral property, will have a retrospective effect, while also clarifying that an unregistered oral partition, without any contemporaneous public document, cannot be accepted as the statutorily recognized mode of partition.

The 3-judge bench has also clarified that if the property had already been written in the name of an heir before the amendment came into effect, the woman would not be able to claim a share. High Courts have also been instructed to dispose of cases involving this issue within six months since they would have been pending for years.

Tuesday’s judgment not only clears the air on the provisions of the Hindu Succession (Amendment) Act, 2005 which had given Hindu women the right to be coparceners or joint legal heirs in the same way a male heir does, it also corrects discrimination on the grounds of gender and upholds the fundamental right to equality which has been guaranteed by the Indian Constitution, paving the way to further equality.