Hindu Succession Act of 1956
Articles 14 and 15 of the Indian Constitution guarantee equal protection for women, and the Hindu Succession Act of 1956 was written with this guarantee in mind. It prompted changes in the law that removed restrictions on women's inheritances and gave them full ownership. Transfer of ownership of Mitakshara coparcenary property and of male Hindus themselves was addressed in Sections 6 and 8 of the Act, respectively. With Dr Ambedkar's guidance, the B.N. Rau Committee drafted the Hindu Succession Act, which advocated replacing the Mitakshara coparcenary and its concept of survivorship and the son's birthright in a joint family property with the principle of inheritance by succession. After a backlash of conservative opposition from the Constituent Assembly, the Mitakshara coparcenary was preserved in the Act with men acting as coparceners.
Therefore, the Act maintained its application of the rule of survivorship, with the caveat that in cases where the deceased had left behind a female relative under Class 1 of Schedule 1 or a male relative belonging to that Class who comes under such a female relative, the focus would pass through testamentary or intestate succession. Decentralisation by survivorship still had a place in the Act with respect to the deceased coparcener's curiosity, as seen by the hypothetical separation used to assess the deceased coparcener's attention in a Mitakshara coparcenary. This means that the entire coparcenary ran smoothly, which was the lawmakers' intention.
Articles 14 and 15 of the Indian Constitution guarantee equal protection for women, and the Hindu Succession Act of 1956 was written with this guarantee in mind. It prompted changes in the law that removed restrictions on women's inheritances and gave them full ownership. Transfer of ownership of Mitakshara coparcenary property and of male Hindus themselves was addressed in Sections 6 and 8 of the Act, respectively. With Dr Ambedkar's guidance, the B.N. Rau Committee drafted the Hindu Succession Act, which advocated replacing the Mitakshara coparcenary and its concept of survivorship and the son's birthright in a joint family property with the principle of inheritance by succession. After a backlash of conservative opposition from the Constituent Assembly, the Mitakshara coparcenary was preserved in the Act with men acting as coparceners.
In cases where the deceased left behind a female relative falling under Class 1 of Schedule 1 or a male relative belonging to that Class who comes under such a female relative, the focus would pass through testamentary or intestate succession rather than the rule of survivorship. Decentralisation by survivorship still had a place in the Act with respect to the deceased coparcener's curiosity, as seen by the hypothetical separation used to assess the deceased coparcener's attention in a Mitakshara coparcenary. This means that the entire coparcenary ran smoothly, which was the lawmakers' intention.
Hindu Succession Act 2005
Two substantial modifications to the Hindu Succession
Act, 1956 (henceforth referred to as the Act) were proposed in the Hindu
Succession (Amendment) Bill, 2004. Both Section 23 (which disentitles female
rights to ask for partition in a dwelling house occupied by the intestate
family with the male heirs initiating it) and Section 6 (which would be
replaced by a new section to give daughters equal rights to sons) would need to
be removed. Finally, in 2005, an amendment was enacted to make some amendments
to the Hindu Succession Act, of 1956. These
alterations were made:
Article 4(2)
Since the act does not supersede the provisions of any
other act, including those that aim to prevent the subdivision or fragmentation
of agricultural land, the sealing of the ceiling, or the creation of tenancy
rights despite such holding, the omitted section can be safely ignored. Since
rights on agricultural lands were excluded from the scope of this section and
were regulated by State-level tenure laws, it was creating discrimination in
favour of women because women were not receiving any entitlement or interest in
the agricultural lands. The elimination of this clause protects women's rights
to farmland to the same extent as men's.
Section 6
The elimination of the previous provision under
Section 6 of the act and the introduction of the new provision marked a watershed
moment in the development of women's property rights. A daughter born into a
Joint Hindu Family now automatically has the same rights and responsibilities
as a son regarding the family's property under the new law. In Hindu
law, the right to property held jointly by husband and wife (known as
"undivided property") was greatly diminished and dispersed. Avoiding
a rehash of dusty mediaeval customs and instead relying on the modern-day legal
protections that have been formally recognised by legislative fiat. Whether a
woman is a daughter, wife, widow, or mother affects her property rights in
Hinduism, as does whether she is married, unmarried, or deserted. Land, a
house, and marital property are all examples of real estate that a couple may inherit or acquire during their lifetimes.
As a result, women could only inherit the stridhan from their fathers and not their husbands. And there were two kinds of stridhan: the sauadayika, which included gifts from parents and husband, and full ownership and the right to dispose of them; and the non-sauadayika, which included gifts from strangers and property acquired through self-exertion, mechanical art, and so on as a married woman, and limited ownership and the right to alienate it without her husband's consent.
The Privy Council clarified the issue of women's limited rights to specific property by referring to it as "women's estate," meaning that the female owner takes it only as a limited owner. It wasn't until The Hindu Women's Rights to Property Act of 1937, that women finally gained legal protection for their property rights. When a male Hindu dies intestate and leaves a female heir, the widow has the same right to partition as the male owner. However, this right was limited in scope, as she needs the approval of male members to dispose of this woman's estate without their permission. Though narrow in scope and reducing women's status to their marital relationship as the basis for such claim in property, this would be remembered as a watershed moment in the fight for women's property rights.
Thus, legislators introduced a law called "The Hindu Succession Act, 1956", to rectify the problems caused by the aforementioned Act. Although the Act improved upon previous legislation, it still fell short of fully recognising the coparcenary of daughters in Joint Hindu Families. Because of this, the daughter is disadvantaged because she cannot seek partition. However, after the 2005 amendment, the daughter was recognised as a coparcener. She granted all coparcener rights, including the right to file to partition her portion of the Joint Hindu Property.
Furthermore, this new provision will not affect any alienation, partition, or testamentary partition that took place before December 20, 2004.
Section 23
The removal of section 23 of the Act, which discriminated against the female heirs to seek any partition in the dwelling house that the intestate left before the male successor chose to do so, was another significant alteration brought about by this revision. In the years before 2005, the Hindu Succession Act institutionalised blatant discrimination against women by making their right to stay in the family home dependent on whether or not they were married, in a civil union, legally separated, or a widow.
Section 24
As part of the 2005 amendment, a section that had previously discriminated against remarried women who were related to the intestate as the widow of a son, the widow of a son's deceased brother, or the widow of a brother's deceased wife was removed. This was established because a woman who has lost her husband through death or divorce becomes one-half of her new spouse. As a result, she lost any claim to the house. However, a widow who was left an intestate estate retains her rights to her deceased husband's property even if she remarries. Due process and legal equality have been established as cornerstones of our constitutional system. Even after the 2005 revision, the statute still had persisting inequalities.
It is asserted that widows of sons who died before birth and sons who died before birth do not count as Class I heirs, whereas widows of brothers do count as agnates. Someone who is an intestate heir automatically takes possession of the estate upon the decedent's death. And once her right is invested in that property, she becomes an absolute owner under section 15. Following such property investment under her being the heir of the deceased, she cannot be divested by any other occurrence. Since its inclusion would have resulted in unfair treatment of some groups of women under the Act's section 24, it was removed.
Section 30
As part of this adjustment, the words "disposed of by him" in section 30 of the Act were changed to "disposed of by him or her" to make the law more inclusive. In addition, several new entries were added to the schedule under the category of class I heir so that daughters' heirs would be on par with sons'. Accordingly, introducing The Hindu Succession (Amendment) Bill in 2004 and its subsequent enforcement in 2005 marked a watershed moment in the struggle against sexual discrimination in Hindu Law.
But a judgment of the Bombay High Court clarifies that the Hindu succession act 2005 would not be applied unless the daughter is born after 2005.
Further, Hon'ble Supreme Court has given a big decision in favour of daughters. The court has said that daughters have as much right to the ancestral property of the joint Hindu family as sons. With birth, the daughter is entitled to equality in the father's property. That is, if the daughter now wants, then she can claim her share in the ancestral property. A three-judge bench of the country's highest court has made it clear that daughters would still have rights over the parents' property even if the father died before the Hindu Succession (Amendment) Act, 2005. The bench consisted of Justice Arun Mishra, Justice S Nazir and Justice MR Shah. The Supreme Court has said in the judgment that the Hindu Succession Act, 1956, amended in 2005, the system of giving equal rights in the ancestral property to daughters also applies to daughters born before 2005. This decision applies only after the amendment for daughters born after 2005. The daughter's share in paternal property cannot be denied on the grounds that she was born before the 2005 law. With this new decision, the Supreme Court rejected its decision in 2015, stating that the rights under the Hindu Succession Act 1956 amendment are applicable to the surviving daughters of the surviving shareholder of the property till 9 September 2005. Then whether daughters were ever born. There were several appeals against this Supreme Court decision of 2015. It is now clear that even if the father died before the Hindu Succession (Amendment) Act, 2005, daughters would still have rights over the parents' property.
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