Coparcenary is a birthright.
The history of personal laws in India is rooted in India’s colonial past. Both
Hindu and Muslim Personal Laws were brought in the early 20th century to protect
the private realm of the household from the colonial state. These Hindu and
Mohammedan laws were largely retained by the Constitution at the time of
independence. Consequently, personal laws as they exist today have largely been
drawn from the customs that were favourable to the native patriarchy.
The term ‘personal laws’ circumscribes the scriptural mandates and customary
practices within it. By religious personal law, we refer to rules governing the
formation of marriage and its dissolution; the respective rights, obligations
and capacities of spouses; the relationship between parents and children;
marital property; child custody or guardianship; and inheritance [i].
various religious personal laws in India. But the status of women is of great
concern as the personal religious laws portray women in a subordinate position
to men. The present article is focusing on the disparities which a woman faces
through personal religious laws.
In the Vedic times and the ancient ages, women had the liberties to exercise
various privileges and rights just like men. They were considered equal at
almost all levels. But there was only one sector where women were discriminated;
it was the matter of inheritance. They were not completely excluded from the
inheritance, but there was significant male dominance. In the article, we will
discuss the provisions of the Hindu Succession Act explaining gender justice and
equality. The current status of men and women are also analyzed. It also
includes the latest amendments of the Act.
We have seen that there is Gender Inequality in our personal religious laws.
Somehow Religious personal laws promote patriarchy, for instance, in Muslim
personal laws, marriages occur due to consent of parents, and there is no
specific age of marriage also so, it may cause to early marriages. If early
marriage happens then, definitely there will be a lack of education. In our
country, it is considered that if a girl is not educated then give more dowry so
that it can be compensated. Dowry further leads to Domestic violence. Dowry
occurred from Religious personal laws & now it has become the taboo for our
As many as 15,000 women annually are killed by their husbands in disputes over
dowry. Reported dowry deaths have increased by 170 per cent in the past decade.
Thousands more are injured and maimed because the husband, or the husband`s
family, is dissatisfied with the dowry brought by the wife. In India, sometimes
women are burned if their parents didn`t pay enough dowry when the girl got
married. This is often called a kitchen accident; in 99% of these kitchen
accidents, a woman is murdered. 4000 women are burned every year[ii]. The
international centre for research on women, in a study on domestic violence,
found that 12% of Indian women cited dowry harassment as the cause of domestic
If women get the divorce, then women go in the state of
loneliness. Loneliness further leads to psychological harassment. Divorce
creates problems for maintenance because there is no such law for maintenance.
Early marriage also leads to early pregnancy and the birth of children that the
leading cause to mother’s poor health and such high mother’s mortality.
So, overall, somehow, many societal issues emerge from the personal religious
laws along with gender inequality.
This existence of various ‘religious’ laws is increasingly being described as
legal pluralism. The ambiguous status of religious personal laws serves to
legitimize the continued denial by the state of gender equality to women in
family law matters as it creates a space for rules or laws to operate that do
not conform to the Constitutional requirements and yet are enforced by the
state. Religious Personal Laws are used as a mode of governance where their
ambiguous status serves to legitimize the continued denial by the state of
gender equality to women in family law matters, for example in succession rules.
The Hindu Personal Law (Succession)
From the 1900s to 2020, there have been several changes in the laws regarding
what share of the property do females get in a Hindu Undivided Family (HUF). As
termed by the experts, the Classical Law period, which is from 1860-1937 saw one
of the first significant changes with respect to the laws for females in a HUF.
In this time period, a new law was passed which stated that no widow had the
right to demand partition, but on the other hand, the widowed mother received a
certain share when there was a partition between brothers in the family.
Moving onto the Act which was passed in 1937, there was a huge development
regarding the rights for widows in a HUF. Finally, in this Act, it was stated
the right to partition would be given to widows, and this gives them the right
to step into the shoes of the deceased coparcener. It was also mentioned in this
Act that the widows only had a limited right and didn’t have the right to
alienate whenever they wanted to. This move was not welcomed by the entire
population of India and received severe backlash from certain parts of the
community. Some say this was the first step to females getting equal rights when
it came to properties in a HUF.
Now swiftly moving onto 1956 when the next amendment was made in the Hindu
Succession Act. This, as said by many experts, is said to be one of the most
significant developments with respect to female rights to property in a HUF.
This amendment tweaked the famous Section 6 in the Hindu Succession Act. This
Section contains the list of Class 1 heirs which in simple terms shows the list
of family members who will be first in line to get property when a partition
takes place in a HUF. In the 1956 amendment, the mother, daughter and a widow
were also added to the list of Class 1 heirs.
This meant that now the mother,
daughter and a widow would be first in line to get property in case a partition
takes place in a HUF.
Another significant amendment was with respect to Section 14 of the
above-mentioned Act. Now this particular Section would have retrospective effect
for females including widows. This Section states that any property which is
owned by a female Hindu, whether acquired before or after the commencement of
the said Act shall be held by her as a full owner and not in a limited capacity.
This was a monumental step in terms of females getting equal rights with respect
to property in India.
Amended Text (2005)
Legal experts across India deemed this as one of the most progressive moves that
the Indian judiciary has taken in the past few decades. This Amendment Act
brought various changes in the rights of women towards the property, and
established them as equal as of men.
The changes are:
Section 4(2) of the Act was omitted; this Section stated that the Act shall not
override the provisions of any other act. It created an inequality against women
by obstructing them to capacitate the agricultural land.
Section 6 of the Act creates an equal position for women by providing the right
of coparcener in which a daughter of the Hindu joint family is considered as a
coparcener, and they are entitled to all the rights and liabilities as a son.
Further, the daughter holds the position of coparcener even after her marriage
as because they are provided with the right of coparcener by virtue of their
birth. As of now, a woman has equal rights as men in the property of a Hindu
Section 23 of the Act was omitted as it divested the right of women to obtain a
partition of the dwelling house. The provision stated that a female can dwell in
the house only when she is unmarried, separated, or widowed, which creates
inequality. So, this section was omitted by the amendment Act and gave women the
right of the dwelling house.
Section 24 of the Act states that the widow of the predeceased son, the widow of
the predeceased son and the widow of the brother are not entitled to the share
in the husband property if she remarries. But she deserves a share in the
husband property, so the said section was rescinded by the Amendment act 2005.
Finally, Section 30 of the Act of the was substituted by certain words such as
disposed by him or her instead of him which creates a right for women to
dispose of her property.
Even though all this was a great move by the government, there was a caveat in
all this. The caveat, in this case, was that these Sections would apply only if
the daughter and the father are alive on September 9, 2005 (the date the
amendment was passed). This caveat was not welcomed by a lot of the population
as this set a condition that had to be fulfilled before the right would be given
to the daughters.
While the 2005 amendment granted equal rights and liabilities to women, many
disputes had arisen pertaining to the nature of the Hindu Succession (Amendment)
Act, 2005: whether this law is retrospective in nature or does it have a
retrospective effect or not? And also, whether the rights of women are dependent
on the living status of their fathers at the time of amendment or not?
Different benches of the Supreme Court have given conflicting views upon these
questions in various cases. Relying on such conflicting views by considering
them as ‘binding precedents’ many High Courts have also decided on some cases.
Prakash v. Phulavati (2016)
In this case, the decision was given by a two-judge bench headed by Justice A.K.
Goel, it was held that if the coparcener (father) is died prior to 9th September
2005 (the date on which the amendment came into force), his daughter will have
no inheritance right to be entitled in the coparcenary property. So, the benefit
of such amendment will only be given to living daughters of living coparceners
on 9th September 2005.
Danamma v. Amar Singh (2018)
The father need not necessarily be alive on the enactment of the Hindu
Succession (Amendment) Act, 2005 for daughters to become a coparcener.
A two-judge bench headed by Justice A.K. Sikri has held that daughters could
claim their coparcenary property even if their fathers were dead before the
enactment of the Hindu Succession (Amendment) Act, 2005.
As these conflicting perspectives were given by the benches of equal strength,
that led to the reference to the larger bench on the current case i.e., a
three-judge bench in the case of Vineeta Sharma v. Rakesh Sharma (2020).
The Supreme Court disagreed with the Prakash v. Phulavati case
and agreed with
the Danamma v. Amar Singh case
The father need not necessarily be alive on the enactment of the Hindu
Succession (Amendment) Act, 2005 for daughters to become a coparcener. Daughters
could claim their coparcenary property even if the father were dead before the
enactment of the Hindu Succession (Amendment) Act, 2005.
The daughters have their right in the ancestral property since birth as they are
a coparcener since birth in the same manner as a son.
Half of the Indian population too are woman. Women have always been
discriminated against and have suffered and are suffering discrimination in
silence. Self-sacrifice and self-denial are their nobility and fortitude, and
yet they have been subjected to all equities indignities, inequality and
discrimination said by Justice K. Rama Swamy[iv].
As said by Justice Rama Swamy, there is discrimination with girls in India.
There are various religions and personal laws too, which were formulated as per
the necessity of particular religion. Religious personal laws have been
discriminatory with women. There are mentions of many discriminatory
jurisprudences for the women. Such discriminations are not present in Civil
laws. The civil laws have a better position of women as compared to religious
personal laws. It can be due to patriarchal setup and culture of dependency of
women on men in India that prevailed before the dawn of the 21st Century.
Religion is a matter of belief; belief is a matter of conscience, and freedom of
conscience is the bedrock of modern civilization. In a multi-religious country
like India which has opted for a secular State, it is the right of every citizen
to elect to be governed by secular laws in personal matters, and it is the duty
of the state to provide an optional secular code of family laws. But the Indian
Parliament is adopting an ambivalent attitude due to political compulsions.[v]
Let the women fly in the sky by removing the oppression posed on her and
enlighten her world with new dreams, aims and aspirations.
- UNRISD. Gender, religion and democratic politics inIndia. New Delhi,
- Sinha RK. Women across generation, Mohit Publications, New Delhi, 2010
- Kashyap L, Panchal T. Family violence from an Indian perspective. In
S.M. Asay, J. Defrain, M. Metzger & B.Moyer (Eds.). Family violence from the
global perspective. Sage publication, Thousands oaks, 2014, 69.
- Chawla M. Gender justice: Women and law in India, Deep and Deep
Publications, New Delhi, 2006, 33-67.
- Kader SA. Muslim law of marriage and succession in India. Easter Law
House, New Delhi, 1998