Since the very inception of the society women were subjected to discrimination. All the rules and regulations governing the society were gender biased, which truely made their condition pathetic. But as the society evolved, the need and the importance of gender equality got recognition. And it is evident in different legislations that the legislators had tried to remove this lacunae either by the principal statute itself or by the amendments in case of failing to do so.

The amendment act of 2005 to the Hindu Succession Act 1956 also tried to do the same. Several shortcomings of the principal act of 1956 were removed and an attempt was made to give daughters equal status at par with sons.

However, inspite of the changes made, the rights of the married daughter in relation to the Will, intestacy and inheritance of the agricultural land, still remains disputed.

In this article we will analyse the true status of the married daughters in relation to the agricultural land and try to analyse the reason behind the prevailing ambiguity, despite the several attempts of the parliament.

Unresolved issue of agricultural land

To answer this, it is necessary to look upon one unamended provision of the HSA 1956 i.e. section 4(2). Section 4 of the act deals with the overriding effect of the act and sub section 2 of the section 4 states "it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings."

On the perusal of the provision it is clear that it excluded the inheritance of the agricultural land from the purview of HSA and left such inheritance on state tenurial laws.

With the amendment of 2005, on recommendation of the Standing committee of parliament on law and Justice, parliament removed section 4(2). And it is intended that this will remove the doubt regarding agricultural land. But the situation was not what was expected. Despite the removal of section 4(2), a number of states including Uttar Pradesh, Himachal Pradesh and Punjab continued with their tenurial law, denying women's right to inherit agricultural land. Now the question arises what is the reason behind this contradiction ?.

Reason behind the contradiction

The reason behind the contradiction lies in the technicality of the law. The constitution of India has made a three fold distribution and divided the subjects matters in three lists i.e. Union list, Concurrent and the State list, to avoid any kind of overlapping and absurdity relating to the process of making law.

While agriculture is mentioned under Entry 18 of the state list and the matter related to Will, intestacy or inheritance is mentioned under Entry 5 of the concurrent list. Now in case of inheritance related to agricultural land ,the overlapping of these two entries creates ambiguity and opens the door for interpretation by the different courts, which is the prime reason behind the unresolved question relating to the agriculture land.

Diverging court opinions:

To understand the ambiguity created by the different entries, opening the door of interpretation, we should look upon the diverging opinion of different courts on different occasions, where courts tried to clarify the position of the women regarding their rights in agricultural land.

In case of Nirmala v. Government of NCT 2010, Delhi High Court gave the decision favouring the right of married daughter and observed:

• Removal of section 4(2) from HSA 1956 allows HSA to override any other law in force before the section's removal, insofar as that law is inconsistent with HSA.
• The removal of section 4(2) is very much a conscious act of Parliament, which clearly did not want the unequal treatment of women pronounced in the Delhi Land Reforms Act, 1954 and other similar laws to continue.

In case of Archana v, Dy, Director of consolidation Amroha 2015, Allahabad High Court denied the right of married daughter and observed that the tenurial law of the State would prevail over HSA. The court said that the President of India's assent to the UP Act allows that Act to prevail, even if there is a repugnancy between the State and Concurrent Lists in this matter. Thus the decision was inconsistent with the view taken in the above case and is against the right of married daughters.

In case of Roshan Lal v, Pritam Singh 2018, Himachal Pradesh HIgh Court gave decision in line with Nirmala v. Government of NCT 2010. The court stated -The whole object and intent of removing section 4(2) was to offer absolute rights for women, regardless of the nature of the property a woman holds and thus advocated the right of married daughters.

Conclusion:
The issue related to the right of unmarried daughter in agricultural land still remain unresolved despite the efforts of the several courts.

It is important here to note the decisions given by the supreme court in two recent judgments. In case of Baburam v, Santokh Singh 2019, related to the preferential right of the heirs given under section 22 of HSA 1956, it was held that agricultural land will also come under the purview of section 22. And in case of Vineeta Sharma v. Rakesh Sharma 2020 ,absolute right of daughter in the matter of inheritance of family property was recognised ,irrespective of her marital status.

These two decision as precedent is paving the way but a similar pronouncement is needed to uphold the rights of married daughter in agricultural land Written By: Muhammad Iftekhar Khan, student of LLB Hons. at Banaras Hindu University