Coparcenary Rights: SC judgment is not the anthem of equality we are hailing it to be

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Srishti Agnihotri

The recent judgment of the Supreme Court on the property rights of women in Vineeta Sharma vs Rakesh Sharma and Ors, has understandably caused a stir. The judgment, which has been referred to as ‘landmark’ does settle an important legal question, which has long been in need of settling. However, effusive praise of the judgment as a victory for women’s right to equality, may have to be tempered with an understanding of how and whether the court engages with questions of equality, and what the court ultimately holds.

The apex court while interpreting Section 6 of the Hindu Succession Act, as amended in 2005, held that the Section confers the status of a coparcener on “a daughter born before or after the amendment, in the same manner as a son, with the same rights and liabilities.” It also held that a daughter born earlier than September 9, 2005, may claim these rights, with effect from the date of the amendment, and it did not matter if the father was alive on such date. The court gives the provision, what it calls, a ‘retroactive’ status. That is, the provision operates in future, “however, its operation is based upon the character or status that arose earlier”.

Matters where any alienation, testamentary disposition (or a disposition of property by a will), or partition had already taken place before December 20, 2004, are to be left untouched, as per the provisions of the Section itself.

Ratna Kapur (in Subversive Sites: Feminist Engagements with law in India), talks of how rules of inheritance are ‘shaped by patrilineal assumptions of property descending through the male line’. The Hindu Succession Act, 1956, as originally enacted went some way towards correcting the injustices in Hindu law and gave women the status of ‘absolute ownership’ of their property. Women were also given equal rights to their father’s self-acquired property,

There remained a disparity as far as ancestral/ coparcenary property was concerned. The Hindu Succession Act, 1956, as originally enacted, did not recognise women as coparceners. The amendment Act of 2005 in its statement of objects and reasons, stated that the law contributed to gender discrimination, oppression, and negation of the daughter’s constitutional right to equality. It was with this in mind that Section 6 was amended to state that “on and from the commencement” of the amendment Act, the daughter of a coparcener shall “(a) by birth become a coparcener in her own right in the same manner as the son”, and have the same rights and liabilities in the property as that of a son.

In October 2015, the Supreme Court in Prakash vs Phulvati, held that the provision was ‘prospective’, in that “the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement of Hindu Succession (Amendment) Act, 2005’.” The court did not accept the argument that the amendment was a ‘beneficial legislation’ and rooted its interpretation in the text and plain meaning of the statute.

In Danamma vs Aman (2018), the Supreme Court made observations that were in conflict with Prakash v. Phulvati. This led to a reference to a three-judge bench, and ultimately the Vineeta Sharma judgment.

The Vineeta Sharma judgment deals largely with the historical background of Hindu law, the meaning of a joint family or a coparcenary property, and the objectives behind the 2005 amendment. It roots its decision in two factors: One, the rights of daughters, and, two, that the status of a coparcener begins at birth.

According to the apex court, whether the father or any other coparcener died before the 2005 amendment is immaterial, because coparcenary rights accrue from birth. The court finds that this aspect was not brought before it in Prakash v. Phulvati, and uses this as a basis to overrule it.

On the question of the rights of daughters, the judgment does speak of the objective of the amendment Act, and of ‘goal of gender justice as constitutionally envisaged’, however, there is no meaningful engagement with the idea of equality. In the very next line, the court quotes a judgment which says “A son is a son until he gets a wife. A daughter is a daughter throughout her life.” This rhetoric, while employed for laudable reasons, is not the anthem of equality we are hailing it to be.

Srishti Agnihotri is Advocate-on-Record, Supreme Court of India. Views are personal.