Monday, April 12, 2010

FULL TEXT OF HINDU SUCCESSION ACT,2005, AS PRESENTED IN RAJYA SABHA



Hindu Succession (Amendment) Act, 2005 Empowering Women



Westernisation and globalization have radically changed the face of India. This change is most evident in its effect on the Hindu Joint Family system. Families that would give the saas-bahu serials of today a run for their money have now given way to nuclear families. With the advent of modernization and the feminist movement gaining ground, the woman no longer plays a subservient role in society and indeed has overshadowed man in most fields. In the era of feminism, uncomfortable questions arise as regards the role of age-old customs and traditions of Hinduism in the modern world. For instance, does the bastion of 


Hindu Law - the Hindu Succession Act, 1956 ascribe an equal status to men and women? Can Hindu women now claim a right to ancestral property-a right that has been denied of them since times immemorial? Are woman truly on the same legal footing as men? An analysis of the Hindu Succession Act, 1956 (“Act”) and the forward looking amendments thereto would seem to suggest as much. This Article analyses monumental change introduced into Hindu law through the Hindu Succession (Amendment) Act, 2005 (“the Amendment Act”). It postulates that that while the wording of Section 6 might be couched in ambiguity, the section needs to be given the widest possible interpretation to ensure that the broad changes concerning the status and rights of women in respect of coparcenary property are not defeated by resorting to legalese. 


Introduction of new Section 6: The Amendment Act introduced a new section 6 into the Act, by virtue of which a daughter of a coparcener in a joint Hindu family governed by Mitakshara law becomes a coparcener in her own right and enjoys rights equal to those enjoyed by the son of a coparcener. 


The relevant part of Section 6 reads as follows: “6. (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,— (a) also by birth become a coparcener in her own right; the same manner as the son here; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities and disabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter: …” Implications: The newly introduced section 6 provides that a daughter shall by birth become a coparcener in her own right. The implications of the introduction prima facie appear to be that a daughter stands on an equal footing with a son of a coparcener and is invested with all rights, including the right to seek partition of the coparcenary property. Problematic interpretations: The newly introduced section 6 begins with the words “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. A question therefore arises as to the status of women married prior to the commencement of the Amendment Act, i.e. prior to 9th September 2005 (“said commencement date”). In other words, would women married prior to the said commencement date have a right to claim a share in partition of joint family property occurring subsequent to the said commencement date? Arguments in favour of wide interpretation: A perusal of the Opening Speeches at the time of introduction of the Hindu Succession (Amendment) Bill, 2004 in Parliament; consideration of the Statement of Objects and Reasons of the Amendment Act and comparison with existing State legislations seems to lead to the conclusion that the Amendment seeks to introduce the concept of gender equality and consequently draws no specific distinction between married and unmarried women. 
 A. Opening Speeches at the time of introduction of the Hindu Succession (Amendment) Bill, 2004 in Parliament A perusal of the Opening Speeches at the time of the introduction of the Hindu Succession (Amendment) Bill, 2004 in Parliament clearly establishes the intention of the Legislature in respect of applicability of the newly introduced Section 6 to married women: The Hon’ble Law Minister H.R Bharadwaj in his introductory address in the Rajya Sabha observed: “…Sir, this has to be improved further and now the present law makes certain provisions. The benefit of the proposed new section relating to devolution of interest in coparcenary property is one item, and, declaring daughters also as coparceners by birth is proposed to be extended to married daughters as well subject to the condition that it shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which has taken place before the introduction of this Bill in Rajya Sabha on 20th December, 2004. 


 Similarly, in his opening address in the Lok Sabha, the Hon’ble Law Minister observed: “…By this Bill, we are amending Section 6 to enable devolution of interest in coparcenary property to daughters, both married and unmarried…” An extract of the Parliamentary Debate in the Lok Sabha would, put the matter to rest: “A question was asked here whether the property will devolve only on the married daughter or on the unmarried daughter also. Another point was raised that this provision should be extended to the married daughter also. I feel that it would be possible to extend this provision to the married women also if it is not going to bring a large number of litigations. But the Hindu society, as we know, cannot tolerate this as we cannot fix the cut-off date for it. If the Government can have a cut-off date, say for example, daughter married before 10 years or from such and such date, then I would be happy that this provision of the right to property is extended to married women also. 
Actually, we have provided it for married women also. I have moved an amendment in the Rajya Sabha for it, and it has been carried. PROF. M. RAMADASS : Then it is all right. I am very happy that you have taken note of our view also. MR. CHAIRMAN: The Standing Committee has also recommended it.” (emphasis supplied) It is clear from the above that the intention of the Parliament at the time of introduction of the Hindu Succession (Amendment) Bill, 2004 itself was that the newly introduced section 6 would confer coparcenary rights by birth upon women, irrespective of whether they were married prior to the said commencement date. B. Statement of Objects and Reasons of the said Amendment The provisions of the amended Section 6 of the Act have been introduced with the avowed objective of “removing the discrimination contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in Hindu Mitakshara coparcenary property as the sons have.” It was felt that the retention of Mitakshara coparcenary property without including the females in it meant that females could not inherit as their male counterparts did and that the existing law by excluding the daughter from participating in coparcenary ownership not only contributed to her discrimination on the grounds of gender but also led to oppression and negation of her fundamental right to equality guaranteed by the Constitution. 


The Amendment is thus clearly a social welfare legislation and consequently, in accordance with considerable judicial dicta must be given the broadest possible interpretation. As the Amendment does not specifically draw a distinction between married and unmarried women, reading such a distinction into the provisions of the newly introduced Section 6 would unnaturally restrict the scope and applicability of the said Section and be self-defeating in as much as the principal objective of gender equality would be available only to women unmarried as of the said commencement date. C. Comparison with existing State legislations “Succession” is a subject falling under the Concurrent List of the Seventh Schedule to the Constitution and consequently both the Centre and the States have the power to legislate on the said subject. It is pertinent to note that a few states like Maharashtra, Andhra Pradesh, Karnataka etc. had enacted legislations prior to the commencement of the said Amendment Act containing provisions similar to the new Section 6 of the Act. These State legislations specifically draw a distinction between married and unmarried daughters: i. Maharashtra “29-A(iv). Nothing contained in this Chapter shall apply to a daughter married before the date of commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994”. ii. Andhra Pradesh “29-A(iv). Nothing in Cl (ii) shall apply to prior a daughter married to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986” iii. Karnataka “6A(d) nothing contained in clause(b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990.” 


It is clear from the above that while various State legislations specifically draw a distinction between a married daughter and an unmarried daughter, the newly introduced Section 6 does not draw any such distinction. Given the fact that the said Amendment Act is a social welfare legislation, it must be beneficially construed so as to include all classes of persons not specifically excluded from its purview. D. Analysis of case-law In Sugalabai v. Gundappa A. Maradi and Ors {ILR 2007 KAR 4790 : 2008 (2) Kar LJ 406}, the specific question before the Court was whether a daughter who was married prior to the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990 would be entitled to a share as a coparcener in light of section 6-A(d) of the Hindu Succession (Karnataka Amendment) Act 1990 (extracted above) read with the amended section 6 of the Act. The Court observed: “50. 


Thus, to conclude the discussion on the point under consideration, in the wake of the aforesaid principles laid down by the Apex Court and by this Court in the cases referred to above, and also taking into account the provisions contained in Section 6-A(d) of the Karnataka Act 1990 and the Central Amendment Act of 2005, I find myself fully in agreement with the submissions made by the learned senior counsel Sri. V. Tarakaram and learned counsel Sri. Desai and Sri. Balakrishna Shastry that Section 6-A(d) of the Karnataka Amendment Act 1990, cannot, but be termed as repugnant to the Central Act of 2005 and as such, the said provision contained in Section 6-A(d) which excludes a daughter, married prior to coming into force of the Karnataka Amendment Act, 1990, from being entitled to be treated as a co-parcener, is void and ceases to have any affect. 


Point No. 1, is accordingly answered. … As far as the second question of law is concerned, it is the submission of the learned counsel Sri. Desai that the lower appellate Court erred in modifying the share of the appellant from 1/4th to 1/8th and in effecting the said modification, the lower appellate Court proceeded on the footing that the appellant being a married daughter will not be entitled to claim partition as she was not a co-parcener. In view of the change in the law brought about by the Karnataka Amendment Act of 1990, giving the daughter equal right as that of a son at partition in respect of co-parcenary property, and further, this Court having taken the view that Section 6-A(d) of the State Act being repugnant to the Central Act of 2005 the disability that a daughter married prior to coming into force the Karnataka Amendment Act, 1990, being ineligible, ceases to have any effect and consequently the view taken by the lower appellate Court in reducing the share of the appellant from 1/4th to l/8th cannot be upheld in law.” (emphasis supplied) 


Conclusion: In light of the above, it seems clear that the newly introduced Section 6 would be applicable to all daughters, whether married or unmarried prior to the said commencement date. The Amendment Act therefore goes a long way towards the establishment of gender equality and abolition of the patrilineal system of inheritance prevailing among Hindus.




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