Coparcenary Rights of Women: A Journey from Non-Existence to Full Existence

As per jurisprudence and legal history, Hindu Law is a branch of Dharma  and combination of morality and religion with legal principles. Female heirs are enumerated differently in different schools of Hindu Law. This Article is focussing on Mitakshara Law and its Schools and codification of Law and its amendments from time to time, coparcenery  vis a vis female heirs and interpretation of legislation by Judiciary. Every member of a Mitakshara joint family, including their wives and unmarried  daughters, is derived from a common ancestor. No female was a member of coparcenary. Then came the fragmentary Acts e.g. Hindu Women’s Right to Property Act 1937 under which widow , widow of a predeceased son or widow  of a predeceased son of a predeceased son are treated on the same level as the male issue of the last owner. However, the widow does not on that account becomes a coparcener. Constitution (1950) granted equal rights particularly  Article 14 of the Constitution and Article 15 of the Constitution which prohibits any discrimination on the ground of religion or gender. Codification of Hindu Law has taken place keeping this avowed objective in mind.  Under codified law i.e. Hindu Succession Act 1956 (old law will continue to remain applicable for which no provision is made in the Act of 1956) Section 6 as unamended affected the doctrine of Mitakshara Law of Coparcenary viz. if a Coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative  specified in that class claiming through such female relative, i.e. around 12 preferential heirs, his undivided interest in the Mitakshara coparcenary property would devolve upon his heirs by intestate succession as per section 8. The rules of Succession under 1956 Act are based on principle of equality enunciated in the Constitution however female was not a Coparcener. State Act i.e. The Hindu Succession (Maharashtra Amendment) Act, 1994 added Chapter IIA, Section 29A  which mentioned that   under Mitakshara Law, daughters shall become coparceners by birth in their  own right and can claim by survivorship; however  the said amendment Act is not applicable to daughters married before the commencement of Maharashtra Amendment Act 1994. The Hindu Succession Act amendments  passed in 2005 granted daughters the same status as coparceners, which was justifiable and opened the door for the law's inclusive application—albeit in a weakened magnitude. Bombay High Court in Vaishali Satish Ganorkar matter(infra) observed “The mischief that was remedied was the discrimination between the daughter and a son in a legislation that was enacted 6 years after the coming into force of the Constitution of India which granted equal rights to all persons irrespective of their sex. The discrimination prevailed for 50 years despite the constitutional mandate of equality.” Legislation, amendments and interpretations to the same by Judiciary has   resulted in situations which at times do not provide logically consistent answers and some anomalous circumstances  and varying consequences are bound to result.  Various opinions were evolved viz. 2005 amendment is having prospective effect, retrospective effect, retroactive effect etc.  Accordingly various interpretations resulting in conflicting judgments were arrived at  Eg.  Bombay HC in Vaishali Satish Ganorkar & Anr vs Mr. Satish Keshaorao Ganorkar & ... on 30 January, 2012 has observed that -“No interest can devolve in a coparcenary property except on the death of the coparcener….the interpretation  that rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Interpretation of Section 6 was referred to a larger Bench in view of the conflicting verdicts rendered in two Division bench judgments of Supreme Court in Prakash & Others Vs. Phulavati & Ors., (2016) 2 SCC 36 and  Danamma @Suman Surpur & Anr. v. Amar & Ors.,(2018)3SCC343. Full  Bench of Supreme Court (a landmark judgment) in Vineeta Sharma vs Rakesh Sharma (on 11 August, 2020)  stated  that provision is retroactive i.e. recognising an antecedent event for conferral of rights, prospectively and observed interalia “Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005” and overruled the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision . Land Reform Laws / Land Acquisition Laws are not in uniformity with  the  personal Laws.  Chhattisgarh High Court in Sanjay K. Agrawal (infra) (Dated Jan 21, 2016) has held,“R&R Policy regarding employment being violative and discriminatory to the extent of excluding married daughter from consideration for employment, is hereby declared void and inoperative”.  Supreme Court in   Har Naraini Devi (infra) (Dated Sep 20, 2022) has held “31. … there can be no challenge to the 1954 Act (Delhi Land Reforms Act) as the said legislation is included in the Ninth Schedule of the Constitution of India, this argument(Gender bias/women empowerment)  also has no legs to stand.” Supreme Court of India, in  Kamala Neti (infra ) dated  9 December, 2022 has observed  “in view of Section 2(2) of Hindu Succession Act and the appellant being the member of the Scheduled Tribe and as the female member of the Scheduled Tribe is specifically excluded, the appellant is not entitled to any right of survivorship under the provisions of Hindu Succession Act…”  In Prakash vs Phulvati  the Hon’ble Supreme Court referred to the observations of Sahai, J. in (Sarla Mudgal vs. Union of India (1995) 3 SCC 635)  that a climate was required to be built for a uniform civil code.  Section 44 and Section 14 of the Constitution need to be implemented in letter and spirit . Recent laudable judgment of the Hon’ble Supreme Court in  Vineeta Sharma vs. Rakesh Sharma is a giant  leap in that direction .In  the matter of Charu Khurana v. Union of India (2012) 7 SCC 248), Their Lordships of the Supreme Court while considering the question of gender justice observed as under:“ ... it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be renounced.”