Daughter act

Apex court ruling is a big step towards gender equality

The Supreme Court’s ruling that a Hindu woman’s right to be joint heir to ancestral property by birth closes a 15-year-old loophole in a progressive 2005 amendment. That ambiguity, on when the law was applicable, enabled Hindu Undivided Families (HUFs) to continue to deprive women of coparcenary rights codified in the Mitakshara code of Hindu law, which was embedded in the Hindu Succession Act, 1956. The 2005 ruling was widely praised at the time since it finally allowed Hindu women a share in ancestral property, putting them on a par with their Christian and Muslim sisters. The definition of Hindu in this case also includes Jains, Buddhists, and Sikhs, and followers of the Brahmo Samaj and the Arya Samaj (the Muslims, Parsis, and Jews have their own inheritance laws). The 2005 ruling amended Section 6 of the Hindu Succession Act, making a daughter a coparcener to ancestral property by birth “in her own right in the same manner as the son”. Importantly, the amendment also specified that the daughter would have the same rights and liabilities “in the coparcenary property as she would have had if she had been a son”, meaning she could sell or give away property as she thought fit. Before this amendment if a parent had given a share of the property to a daughter, it would only be in her lifetime, after which it would be distributed among her male coparceners or their male heirs. 

The weakness in the 2005 amendment was that it left unclear whether the new status applied from 2005 or with retrospective effect (that is, from 1956) and whether the woman’s rights depended on whether her father was alive or not. Three separate rulings by two-judge Benches of the Supreme Court — one in 2015 and two in 2018 — added to the confusion. The first ruled that the amendment applied to “living daughters of living coparceners”. A February 2018 judgment ruled the law was applicable with retrospective effect. In April of that year, another two-judge Bench upheld the 2015 ruling. The latest ruling by a three-judge Bench overrules the earlier rulings and clarifies the issue permanently.

The government, which had made the reference to the three-judge Bench, had also argued for an expansive interpretation of the law. Solicitor General Tushar Mehta has pointed out the Mitakshara coparcenary law not only contributes to gender discrimination but is oppressive and negated the fundamental right to equality guaranteed by the Constitution of India. This ruling has significant implications for family businesses. Although many family businesses, starting with K K Birla way back in the 1980s, have been enlightened enough to pass on their properties to their daughters, there is still a huge amount of wealth locked up in traditional HUFs that leverage Mitakshara laws to retain and manage family wealth. The fact that it has taken 15 years for the issue to be clarified highlights the urgent need for a clear civil code based on universal principles of natural justice and fundamental rights that will put paid to the regressive impulses embedded in most religious personal laws.