Daughters to Have Equal Rights in Ancestral Property

Section 6 of Hindu Succession Act, 2005

India has been a patriarchal society where there has been unfair discrimination of woman with her rights to inheritance of her Father’s property. This was reflected in laws like the Hindu Succession Act, 1956, which did not give women a birth right in the joint family property under Mitakshara coparcenary. The Hindu Succession Act got amended in 2005 with a view to re-affirm the equality granted to women under Article 14 of the Constitution. The amendment provided daughters equal rights in coparcenary property on birth, at par with sons. After the amendment, daughters enjoy the same rights and liabilities as the sons do. Giving women rights in coparcenary property can make them financially strong and stable.
The Constitution of India enshrines the principle of gender equality in its Preamble and Parts III, IV and IVA pertaining to Fundamental Rights, Fundamental Duties and Directive Principles respectively. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. And now as India becomes increasingly aware of the need for equal rights for women, the government can’t afford to overlook, property rights have a deep impact on the society. The need to dispense gender justice raises deep political debate and at times acrimony in legislative forums.

What Is Mitakshara Coparcenary?
• Coparcenary is a narrower body of persons within a joint family, and consists of father, son, son’s son, son’s son’s son. The disparity in the property rights on the basis of gender is deep rooted and can be traced back to the ancient times. Traditional Hindu inheritance laws evolved from the ancient texts of Dharmashastras and the various commentaries and legal treatises on them. In particular, the Mitakshara and the Dayabhaga legal doctrines, dated around the twelfth century AD govern the inheritance practices among the Hindus. In most of northern and parts of western India Mitakshara law came into existence.

• Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparceners, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. The Mitakshara law also recognizes inheritance by succession but only to the property separately owned by an individual male or female. Females are included as heirs to this kind of property by Mitakshara law.
The Hindu Succession (Amendment) Act, 2005
The Hindu Succession (Amendment) Act, 2005 was seeks to make two major amendments in the Hindu Succession Act, 1956. First, it is proposed to remove the gender discrimination in section 6 of the original Act. Second, it proposes to omit section 23 of the original Act, which disentitles 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 property.

Section 6A ( Hindu Succession Act)
The laws got amended in 2005 after more than 50 years with the assent of Hindu Succession Act, 2004 bill by providing daughters equal rights in property on birth, at par with sons. After the amendment, daughters can enjoy the same rights and liabilities as sons. Giving women rights in property has made them financially strong and stable.
 The daughter by birth can become a coparcener in her own right the same manner as the son.

 The daughter can have the same rights in the coparcenary property as she would have had if she had been a son

 The daughter can now become the karta of the family, and

 The daughter who is alive as well as the one who is predeceased is allotted the same share as is allotted to a son.

Laws reflect the face of society and its evolution over the time. To respond to the needs of a dynamic social system, laws have to be changed and amended, at regular intervals. As far as the basic objective of the Act is to remove gender discriminatory practices in the property laws of the Hindus, whereby daughters have been given the status of coparceners in the Mitakshara joint family system. However, the position of other Class I female heirs should not suffer as a result of this move.
However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also

Changes Brought In The Position Of The Women-An Analysis
• Out of many significant benefits brought in for women, one of the significant benefit has been to make women coparcenary (right by birth) in Mitakshara joint family property. Earlier the female heir only had a deceased man’s notional portion. With this amendment, both male and female will get equal rights.

• In a major blow to patriarchy, centuries-old customary Hindu law in the shape of the exclusive male mitakshara coparcenary has been breached throughout the country.

• The preferential right by birth of sons in joint family property, with the offering of “shradha” for the spiritual benefit and solace of ancestors, has for centuries been considered sacred and inviolate. It has also played a major role in the blatant preference for sons in Indian society. This amendment, has made the daughter a member of the coparcenary and is a significant advancement towards gender equality.

• The significant changes of making all daughters including those who are married coparceners in joint family property has been of a of great importance for women, both economically and symbolically. Economically, it can enhance women’s security, by giving them birth rights in property that cannot be willed away by men. In a male-based society where wills often disinherit women, this is a substantial gain.

• The Women can become kartas of the property. Symbolically, all these movement signals that daughters and sons are equally important members of the parental family. It undermines the notion that after marriage the daughter belongs only to her husband’s family. If her marriage breaks down, she can now return to her birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.

The Preamble to the Amending Acts indicates the objective as the removal of discrimination against daughters inherent in the mitakshara coparcenary and thereby eradication of the baneful system of dowry by positive measures thus ameliorating the condition of women in the human society.
Now under the amendment, daughters will now get a share equal to that of sons at the time of the notional partition, just before the death of the father, and an equal share of the father’s separate share. Equal distribution of undivided interests in coparcenary property. However, the position of the mother vis-à-vis the coparcenary stays the same. She, not being a member of the coparcenary, will not get a share at the time of the notional partition. The mother will be entitled to an equal share with other Class I heirs only from the separate share of the father computed at the time of the notional partition. In effect, the actual share of the mother will go down, as the separate share of the father will be less as the property will now be equally divided between father, sons and daughters in the notional partition.

Author : Ms Ekta Jha, 08/02/2018, jhaekta1.ej@gmail.com

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