A landmark judgment on coparcenary which paves the way for gender equality
Our legal system moves slowly but surely. And this was once again proved on
Tuesday when the Supreme Court ruled that it did not matter whether the father
or the coparcener was alive at the time of passing the inheritance act in 2005.
That all daughters would get the inheritance from her father or forefathers as
per the Hindu inheritance act 1956 which was amended in 2005 to give equal
inheritance rights to the daughter. Though on the face of it this may not look
a historical judgment, it would prove to be a milestone on the road to gender
equality which has been there in Hindu society.
Dr Kislay Panday, advocate Supreme Court of India has welcomed the judgment.
This judgment was called for since its interpretation and execution left many
loopholes which could be challenged in the court of law. And this is what was
done. Equality of genders is a fundamental principle of any progressive society.
The apex court judgment rectifies this flaw and once and for all puts an end to
discrimination of sexes while distributing the inheritance. The decision needs
to be applauded. I wish it had come earlier! Dr. Kislay Panday of Managium Juris
has been pleading for gender neutrality in the law for long.
A bench of Justices Arun Mishra, S Abdul Nazeer, and M R Shah put an end, ones
and for all to the confusion arising from the apex court's conflicting
interpretations of the amended Section 6 of Hindu Succession Act, which came
into force from September 9, 2005. The bench said in unequivocal terms that
whether the father was alive or not, daughters born before September 9, 2005,
could claim equal rights in inheritance.
Till the amendment act 2005 was passed Coparcenary property was one which is
inherited by a Hindu son from his father, grandfather or great-grandfather. Only
a coparcener has the right to demand partition of property. Share in a property
increases or decreases by death or birth in a family.
The Mitakshara system applicable in various forms to property owned by Hindu
families has been the basis of the Hindu Succession Act. Justice Mishra quoted a
common saying noted in a 1996 judgment of the SC, to sum up the bench's view
towards daughters, "A son is a son until he gets a wife. A daughter is a
daughter throughout her life.
The reason it annoys many is that they are not comfortable with the idea of
women equality. Many laws even after they become operational are often mired in
confusion and many times various interpretations are made by the junior courts
which nullify the significance of the law. This is what exactly had happened in
the case of The Hindu Succession (Amendment) Act, 2005 which gave an inheritance
to Indian women (barring Muslim women) and considered them at par with the son.
says, Dr. Kislay Panday of Managium Juris the firm that provides pro bono legal
aid to women in distress.
The Hindu Succession (Amendment) Act, 2005 gave Hindu women the right to be
coparceners or joint legal heirs in the same way a male heir does. Since the
coparcenary is by birth, it is not necessary that the father coparcener should
be living as on 9.9.2005, the court ruling said.
It is not always easy to change the mindset and the traditions with a stroke of
the pen. Some issues are more emotional and more provocative and thus need to be
handled carefully. The Hindu Succession (Amendment) Act, 2005 was not well
received in many sections of the society. The hard-line Hindu patriarchal
organizations vehemently opposed it on the ground that it would meddle with the
traditional Hindu traditions and prove chaotic to the Hindu society.
Interestingly, the same group of people would advocate uniform personal law.
Most Hindu hardliners take a very narrow view of women's rights in property and
elsewhere. They quote Manusmriti which says that woman always needs a male
guardian, father when child, brother when adolescent, husband when young and son
when old. But even Manusmriti is not against women owning the property. It is
concerned about the welfare of the women not snatching away her rights. Says Dr
The truth is as traditional Hindu women have always enjoyed property and rights
in movable and immovable property albeit her share was less than that of male
members. The ‘Stridhan' is all about ensuring she owns the property, jewelry,
clothes, land, artifacts, cows, etc. which were gifted to her at the time of
marriage. And this trend has been there all through history. With the emergence
of different schools of Hindu law, the concept of 'stridhan' expanded to its
literal and legal meaning; granting women more rights to ownership. says Dr
Indeed there is always a gap between the social mores and the legal system but
like any progressive society, the first change comes through law and then it
gradually percolates into the society to become a new reality. In the 21st
century when the women are far more aware and empowered the archaic way of life
cannot exist and it must conform to the ever-growing gender equality enshrined
in our constitution.
Written By: Dr Kislay Panday
Law Article in India
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