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A place in the sun

Nachiketa Mittal |

The Supreme Court of India has been at the centre of national debate for many unprecedented reasons in the last one year. Among them, the Apex Court’s approach towards ensuring gender justice has been a major one and widely appreciated.

For instance, in less than a year we have seen the Supreme Court’s decision empowering Muslim women concerning ‘Triple Talaq’ and orders protecting inter-faith marriage against State’s interference (Hadiya case) and also upholding individual autonomy in matters of inter-caste marriages between two consenting adults (Shakti Vahini-Khap Panchayat case).

Through judgments and orders in these cases, the Supreme Court has unequivocally established that women cannot any more be treated subordinate to men in marital decision making.

Now, in the same realm of judicial upliftment of women at par with men, one of the latest judgments of the Supreme Court has creatively and liberally interpreted the Hindu Succession (Amendment) Act, 2005 so that even daughters born prior to such amendment can claim equal coparcenary right over ancestral property like sons, under the amended law.

Thus in the case of Danamma @ Suman Surpur vs Amar, the Supreme Court not only reaffirmed the principles of equality for daughters and sons but also refined the retrospective application of section 6 of the Hindu Succession (Amendment) Act and its judicial interpretation earlier made in Prakash vs Phulvati.

Daughters Subjugated

In our society, daughters have traditionally been considered subjugated to sons for all the wrong reasons. Daughters’ subordinate treatment over centuries led to their placement even in law as secondary, while our society evolved and socio-political rights began to get established.

More so, the irony was such that despite having witnessed front row leadership displayed by women in the Indian freedom struggle, the laws enacted soon after independence did not accord due respect and recognition to women at par with men.

Among several such legislations, the Hindu Succession Act, 1956, which came in the first decade of independence, was one of the most prominent statutes that sent an absolutely wrong message to the already patriarchal Indian families.

This Hindu personal law concerning intestate or unwilled succession ousted the daughters’ legal right at par with sons. It doesn’t need any scientific acumen to understand its two-fold major implications.

Firstly, it weakened the social status of daughters in our society. Secondly, it left daughters in our society deprived of their legal right vis-à-vis ancestral property.

Resultantly, daughters until recently did not have an equal claim on ancestral property. The law itself had been repressive towards daughters in this regard which led to a structural denial of coparcenary right to them.

Such absurd legal proposition flowed from Section 6 of the erstwhile Hindu Succession Act of 1956 which did not provide for daughters to be treated as equal to sons for the purposes of claiming coparcenary rights over ancestral property.

Law and Social Transformation
It is after decades that now the amendment made to section 6 in 2005 virtually elevated the social as well as legal status of daughters to the same level as sons in our families.

The amended law now clearly spells out that in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and she shall also have the same rights in the coparcenary property as she would have had if she had been a son.

Further, the law lays down that daughter shall also be subject to the same liabilities 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 of a coparcener.

However, a critical issue has repeatedly been raised across the High Courts and even in the Supreme Court that whether the Hindu Succession (Amendment) Act, 2005 will have retrospective effect.

Judicial Doctrines

Two and a half years ago, dealing with this issue in Prakash vs Phulavati, the Supreme Court held that rights under the amendment would be applicable to living daughters of living coparceners as on 9 September 2005 (date on which amended law came into force) irrespective of when such daughters were born.

This implies that the amended Section 6 is applicable to daughters born prior to 17 June 1956 (the date on which Hindu Succession Act came into force) or thereafter (between 17 June 1956 and 8 September 2005) provided they are alive on 9 September 2005 i.e. on the date when the amended Act came into force.

The latest judgment pronounced in Danamma @ Suman Surpur vs Amar in February 2018 has once again dealt with a similar issue and has reached almost the same conclusion. But it is being viewed with a pinch of salt.

This is because although the Danamma judgment has categorically reaffirmed the judicially crafted doctrine of ‘living daughters of living coparceners’ established in Prakash vs Phulvati, at the same time it has also made a deviation from its strict application.

It is a given fact that in the Danamma case, coparcener (father) died in 2001, four years prior to the amendment of 2005. So, if Prakash vs Pulavati were to apply in a strict sense, then the claimant daughters in this case may not have got any benefit of the amendment.

Thus the rule of ‘living daughters of living coparceners’ on the date on which amended law came into force does not seem to have found its exact application in the Danamma case.

Instead in this case, the Apex Court has paved a way for daughters to claim benefit under the amended Hindu Succession law despite the coparcener (father in this case) not being alive on the date of enforcement of the amended law. Be that as it may, the daughters have finally been conferred justice.

Third view desirable

However, an actual application of both judgments at the trial court level may need a little more clarity. The reason is simple. Both the Prakash vs Phulavati and Danamma judgments are of division benches of the Supreme Court.

Therefore, the doctrines evolved in the two cases need to be reconciled for an easier comprehension and application of the legal position to live cases by the trial court lawyers.

My interactions with friends who are either trial court lawyers or Magistrates reveals that despite the progressive doctrines established by the two cases, trial court lawyers and Magistrates are quite puzzled about how to place them in terms of their precedence value and application. A third view thus seems desirable.

History tells us that in such a situation usually the larger bench steps in and clarifies a judicial doctrine or any legal position so relevant. Hence, it doesn’t appear to be a major task in this case.

This is because, fortunately, the two judgments are philosophically harmonious in approach and only need a minor clarification for an easier and justifiable application to the cases pending for disposal in trial courts.

However, until we see that happening, trial court lawyers and Magistrates may have to follow the traditional rules of ‘Precedent’ in applying the doctrines of these judgments.

Power to Daughters

Overall, the Supreme Court has squarely placed Hindu daughters at the centre of national debate for the right reason and have also scaled up their socio-legal status several notches by removing a traditionally-practised, gender-based discrimination over claim for ancestral property.

If read and applied harmoniously, the two judgments and the incumbent central government’s ‘Beti Bachao, Beti Padhao’ programme will probably lead to an impactful cultural revolution in Hindu communities and would enable daughters to claim respect and social recognition equivalent to that of sons.

The writer is Assistant Registrar (Research), Supreme Court of India and Assistant Professor of Law, National Law University Odisha, Cuttack