RIGHT TO PROPERTY
It is said that nothing worthwhile comes easy. Things we take for granted is a result of someone else’s hard work and sacrifice. Did you know this that women in India in past could not acquire property. It could be an inference that female folk were not considered worthy of holding the right to property. Here is a sneak peek into how the scenario changed.
The Hindu Succession Act, 1956, was an act to amend and codify laws relating to intestate succession for the followers of Hinduism, Sikhism, Jainism and Buddhism. The Act was amended in the year 2005. The Hindu Succession Act in its previous form did not give daughters equal rights in the ancestral property of the family. This disparity was removed by way of an amendment that came into the force on September 9, 2005. The issue came up before the bench comprising of Chief Justice Mohit Shah and judges MS Sanklecha and MS Sonak because there were conflicting views on the said matter given separately by a single judge bench and a division bench.
A division bench had held that the amendment applied to females born on or after September 9, 2005, so no retrospective application can be given to amendment. With regard to females born before 9 September 2005, the bench held that they would get rights in the property upon the death of their father on or after September 9, 2005.
Difference in opinion
The single judge did not agree with the view of the division bench and stated that the amendment can have retrospective application, and had to be applied from June 17, 1956, that is the date on which the Hindu Succession Act originally came into force. It would apply to all daughters of a coparcener in spite of fact they were born before or after September 9, 2005, or born before or after June 17, 1956.
According to the single judge a daughter, by birth, becomes a coparcener in a Hindu coparcenary in her own right in the same manner as a son, having the same rights in the coparcenary property as she would have had if she had been a son, and subject to similar liabilities.
Before the enactment of the Hindu Succession Act in 1956, customary laws that were not uniform and varied from region to region covered Hindus. The Mitakshara School of Hindu Law stood for the opinion that woman or daughters have the right to maintenance but they have no rights to inherit the property. So if the joint family property owned by coparceners was to be divided then each male member was entitled to a specific portion of the share but the daughter had no share in the property. The only way daughter could share was as one of the heirs on the death of coparcener.
The Section 23 of Hindu Succession Act 1956 reads as when a Hindu intestate leaves either male or female heir and his property includes a dwelling house which is wholly occupied by his family members, then daughter has no right to claim partition of the said dwelling house. Her claim can only arise if male heirs divide their shares. The Section further reads that she is entitled to live in that house provided she is unmarried, deserted or separated from her husband or is a widow.
This Section was seen as gender discriminatory so in order to remove such gender biased provisions; the Hindu Succession (Amendment) Act, 2005 was enacted. As mentioned earlier the amendment came into force on 9th September 2005. The Amendment gave following rights to daughters:-
If family is Joint Hindu family then daughter of a coparcener shall,-
(a) By birth, he becomes a coparcener in same manner as a son.
(b) Daughters shall have same property rights as son has, had she be born as son;
(c) Daughters will have same liabilities and duties in respect of the coparcenary property as sons
(d) the reference to the Hindu Coparcener invariably includes reference to daughter as well.
This above-mentioned Section 23 of the Hindu Succession Act, 1956 relating to the right of residence in dwelling houses was amended by the amendment so that both daughters and sons have equal rights. Thus gender parity and discrimination in property distribution were removed by the 2005 Act. Now, daughters can claim equal rights as sons in the not only coparcenary property but also self -acquired property left by their father. It is moving towards equality of women in India.