In its 174th Report (May 2000), the Law Commission of India was of the view that the gender reforms were called for to ensure equality. The Commission noted the fact that in various States such as Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka, attempts had already been made to bring about the gender equality. But all these States, except Kerala, while conferring coparcenary rights on daughters also denied such rights to daughters married prior to State Acts coming into force.
The Law Commission recommended that the daughter should be made coparcener by birth and that she should be entitled to get a share on partition and/or on the death of the male coparcener. The Commission also recommended that a daughter who is married after the commencement of the Amendment Act, should be entitled to a share in the ancestral property as she has already become a coparcener prior to her marriage.
One more recommendation of the Law Commission was to do away with the erstwhile Section 23 of the Principal Act (The Hindu Succession Act, 1956) which provided that a woman would have a right to stay in the family house as a member of the joint Hindu Family but unlike a male, she would have no right to demand a partition of the family house. The Commission recommended that she should have rights equal to the male in respect of a family house.
The Law commission also observed that the Law of Succession falls under Entry V of the List III (concurrent list) in VII Schedule of the Constitution. In view of Article 246 of the Constitution of India the laws made by the above mentioned five States, would stand repealed to the extent they are repugnant to the Principal Act on amendment.
On 20th December, 2004, the Hindu Succession Amendment Bill 2004 was introduced in the Rajyasabha, inter alia, seeking to amend the erstwhile Section 6 and doing away/omitting the erstwhile Section 23 of the Principal Act.
“Statement of Objects and Reasons for amending the `Principal Act’ read as follows:
STATEMENT OF OBJECTS AND REASONS
The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession Hindus and gave rights which were till then unknown in relation to women’s property. 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 to those governed previously by the Murumakkattayam, Aliyasantana and Nambudir laws.”
The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Parathana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.
2. Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts to. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need of render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act 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 respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.”
4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on ‘Property Rights of Women: Proposed Reform under the Hindu Law.
5. The Bill seeks to achieve the above objects.”
Section 6(1) of the Amendment Act
The Bill inter alia provided in proviso to proposed Section 6(1) that the Amendment Act would not apply to a daughter married before the commencement of the Amendment Act and also that the Amendment Act will have no application to a partition in case the partition had been affected before the commencement of the Amendment Act. The aforesaid Bill was thereafter referred to the Standing committee of Parliament.
The Standing Committee after recording the historical growth of Hindu Law and Gender inequality with regard to the property right practiced against a female Hindu suggested that proviso 1 to proposed Section 6(1) of the Bill which sought to exclude the daughter married before the commencement of the Amendment Act from the benefit of the Act should be done away with.
The Standing Committee also suggested that the partition of the Hindu family property should be properly defined in the Amendment Act. It was suggested that partition for all purposes should be either by registered documents or by decree of Court. However, where oral partition is pleaded, the same should be backed by evidence in support. Further omission of Section 23 as suggested by the Law Commission, will enable the Hindu Women to seek partition of a family house occupied by the family members just as male member could seek partition.
Passing of the Amendment Act, 2005
Thereafter, on 9.09.2005, the Amendment Act, 2005 came to be passed as Act 39 of 2005. Section3 of the Amendment Act, 2005 substituted erstwhile Section 6 of the Principal Act. The Amendment Act, 2005 did away with exclusion of married daughter from getting the benefit of the amendment and also added a proviso to Section 6(1) of the Principal Act saving partitions done prior to 20.12.2004 (the date of introduction of the Bill in Rajya Sabha). The Explanation to Section 6(5) of the Principal Act provided that for the purposes of the Section 6 of the Act partition only means partition by registered document or decree of Court.
Reference
Prasanta Kumar Sahoo & Ors. Versus Charulata Sahu & Ors. (2023)