Injustice against woman is so inescapable that it’s visible in some of the laws made by the legislature itself particularly with respect to inheritance and property rights among members of joint Hindu family.[1] This discrimination is so deep rooted that it has placed women in a difficult situation.

The Hindu Succession Act, 1956 was enacted to revise and arrange law relating to unwilled succession among Hindus.[2] Though the Hindu woman’s restricted estate was cancelled and she was given absolute control over property held by her, the act failed to grant full property rights to women.[3]

Analysis:
The law commission focused on the prejudice ingrained in the Mitakshara coparcenary system under section 6 of 1956 act because it comprised only of male Hindus. The commission’s primary objective was to put an end to discrimination under section 6 of the Act by suggesting suitable changes.[4] Women were excluded from being regarded as coparceners under section 6 which was a rising topic of debate and controversy.

The significant inquiry which emerged was whether they had been given an equivalent right, or whether the arrangements of the act were only an exaggeration.[5] I feel the law commission understood that a major problem regarding Hindu succession was the disparate rights granted to sons and daughters.[6]

The report correctly highlighted as to how coparcenary included just a small group of people and an unfair system where property is being administered through a patrilineal system, where property plummets only through male line. I feel that the patrilineal presupposition of presiding male philosophy is seen in the law governing Hindu woman who dies intestate as her property goes to her mother’s heirs only in end after being given to her children, husband and his heirs.[7]

The report proceeded to highlight the disparities in section 23 of the 1956 act regarding right to residence of married daughter in her parental home which I feel is crucial as this privilege had been confined only to those daughters who were bereaved, abandoned or isolated from their spouses.[8] The report has rightly questioned the right of primacy of family being considered only in situations of females which leaves us to a thought provoking note of the inherent discrimination meted out against females.

Report rightly criticizes authority of coparcener to will away his property under Section 30 of the 1956 Act which is problematic as it includes testamentary right of his daughter by succession and can also demean widow’s right and lead to significant curtailment of position of his wife or widow.[9] Commission was sympathetic towards making daughters as coparceners in the joint family property and in encouragement of this view, it suggested deletion of article 23 of 1956 act to make the privilege granted to daughters as coparceners genuine in soul and substance.[10]

There was a pressing need to include daughters as coparceners because of the insufficient safeguards given to them under section 6 of 1956 act.[11]
To gain popular assessment on the matter, the commission led a study using 21 questions that focused on property rights to be given to daughters in Hindu undivided family with 67 respondents who gave their opinion.

The commission asked questions on whether mitakshara coparcenary system should be retained, if daughters could become Karta. Most of the respondents agreed with abolishing the coparcenary system and making daughters the Karta in the joint Hindu family. Respondents expressed their view to give unbiased treatment to both married and unmarried daughters and to abolish section 23 of 1956 act and conferred opinion towards giving partition rights to women even in case of single dwelling home.

The commission through this report made various proposals.[12] It made few recommendations keeping in mind that gender injustice is removed so they suggested to make daughters as coparceners since removing right by birth of males to coparcenary would not be any more fruitful to women.

Further, it maintained the difference between married and unmarried daughters as presents received by married daughters during their marriage would be significant and therefore difference between those married before and after the commencement of the act was also retained to prevent distress and tension in the family. I feel this step is necessary to end the practice of evil dowry system as daughter post marriage after commencement of act would become coparcener and might not be receiving gifts during her marriage.[13] Commission proposed to remove the concept of pious obligation which is a crucial step towards making daughters coparceners in real sense.

The doctrine was removed and the recommendation was taken into consideration. It emphasized on removal of section 23 from the 1956 Act to preserve the rights of daughters to assert for partition of their dwelling house. I agree with the commission’s recommendations as accreditation of women prompting an equivalent economic well-being in the public eye pivots on their entitlement to hold and acquire property. The commission however did not suggest to confer any limitation on authority of testamentary disposition which I feel would bereave the children and legitimate heirs who have authorized expectation.[14]

A model amendment legislation – the Hindu Succession amendment Bill, 2000 was drafted by the commission and it became an act in 2005. The Hindu Succession Amendment Act,2005 made significant changes by amending section 6 of the 1956 act by granting equal rights to both sons and daughters as coparceners of the joint family property and also removed section 23 to remove the disorder towards female heirs in that section.[15]

In my opinion, the critical change of making daughters as coparceners enhances their position in society and is of immense significance to them both monetarily and emblematically. In a patriarchal society, where wills exclude women, this would be crucial achievement for women as they would get privilege by birth over properties that cannot be willed away by men. As women become Kartas of the property, they gain more power and confidence and it signifies that both men and women are significant members of parental family. It will sabotage the idea that a woman’s family is just her husband’s family after marriage. This will upgrade her self-assurance and social worth and give her more prominent bartering power for herself and her children, in both parental and conjugal families.[16]

In Pravat Chandra Pattnaik and Others vs. Sarat Chandra Pattnaik and Anr, the court highlighted the positive step taken by the legislature by enacting the amendment act of 2005 that put an end to the discrimination towards women and granted equal rights to both men and women. It created meaningful rights in support of women and held that daughter received her rights as coparcener from the date the amendment act came into operation.[17] I agree with this judgment as it has preserved the rights of daughter and justified the objective of the amendment act.

In case of Sugalabai vs. Gundappa A. Maradi and Ors, the question concerning the privilege of married daughter to be treated as coparcener regardless of marriage taking place before Karnataka amendment act, 1990 came into power. It was held that as the amending act of 2005 was passed during pendency of proceedings before lower court, it was the obligation of lower courts to implement the amendment and the property was to be divided in a way to confer equal share to daughter and son.

The correction bought by the 2005 act which eliminated the differentiation between married and unmarried daughter qualified the appellant to be treated as coparcener and decision taken by lower court in decreasing portion of appealing party cannot be supported in law. This shows how the court has rightly interpreted the amended act to give equal status and fair share to the daughter.[18]

Criticism And Conclusion
There are certain criticisms against the amended act of 2005. If an incomplete partition regarding some coparceners is done before the initiation of the new act, their parts would remain intact but the individuals who remained undivided would have to endure decrease in their share with coming of daughter in coparcenary.[19] This is a substantial analysis but appears to be inevitable. It has been consistently contended that if the wives do not get their parts in partition, if daughters are made coparcener, the portions of the former would lessen. This is on grounds that with presentation of daughter as coparcener, the father’s portion and the quantum accessible for notional partition diminishes.

While the amendment would diminish the disparity between daughters and sons, it will widen disparity between daughter and widow.[20] I feel the commission overlooked to recommend a change in section 30 of the 1956 act as that section goes against the objective of the commission to make daughters as equal coparceners to sons. Assuming the degree of testamentary succession is not controlled, there is an undeniable chance that a Karta could will away his entire property excluding the females or his beneficiaries.

Therefore, it is desirable to follow the framework relevant in Muslim law where a limit is placed on the maximum measure of property that can be left for an individual through will. This is the best way to guarantee that all beneficiaries especially females are not burglarized off their legacy.[21]

Though many lawful changes have occurred since independence along with granting equal portions to daughters in property, still the equivalent status is very evasive. Foundation of laws and getting things done in practicality is fundamentally a tedious measure. The public authority, common society needs to play out their jobs, each in their own territories of skill and in a coordinated way for the interaction to be quick and powerful.[22]

End-Notes:

1. B.P Jeevan Reddy, Property Rights Of Women: Proposed Reforms Under The Hindu Law --174th Report, 1,( Law Commission of India, D.O. No. 6(3)(59)/99-LC(LS), 2000
2. Siddharth Priyadarshi Sharma, A Critical Analysis of the 174th Report of the Law Commission Of India, National Law University Delhi, 4 (2014)
3. Siddharth Priyadarshi Sharma, A Critical Analysis of the 174th Report of the Law Commission Of India, National Law University Delhi, (2014)
4. B.P Jeevan Reddy, Property Rights Of Women: Proposed Reforms Under The Hindu Law --174th Report, 8,( Law Commission of India, D.O. No. 6(3)(59)/99-LC(LS), 2000)
5. B.P Jeevan Reddy, Property Rights Of Women: Proposed Reforms Under The Hindu Law --174th Report,
   (Law Commission of India, D.O. No. 6(3)(59)/99-LC(LS), 2000)
6. Siddharth Priyadarshi Sharma, A Critical Analysis of the 174th Report of the Law Commission Of India, National Law University Delhi, (2014)
7. B.P Jeevan Reddy, Property Rights Of Women: Proposed Reforms Under The Hindu Law --174th Report,
   (Law Commission of India, D.O. No. 6(3)(59)/99-LC(LS), 2000)
8. B.P Jeevan Reddy, Property Rights Of Women: Proposed Reforms Under The Hindu Law --174th Report,
   (Law Commission of India, D.O. No. 6(3)(59)/99-LC(LS), 2000)
9. B.P Jeevan Reddy, Property Rights Of Women: Proposed Reforms Under The Hindu Law --174th Report,
   (Law Commission of India, D.O. No. 6(3)(59)/99-LC(LS), 2000)
10. Siddharth Priyadarshi Sharma, A Critical Analysis of the 174th Report of the Law Commission Of India, National Law University Delhi, (2014)
11. Shivani Singhal, Women as Coparceners: Ramifications of the amendment in the Hindu Succession Act, Cochin University Law Review, 238, 2006
12. B.P Jeevan Reddy, Property Rights Of Women: Proposed Reforms Under The Hindu Law --174th Report,
    (Law Commission of India, D.O. No. 6(3)(59)/99-LC(LS), 2000)
13. B.P Jeevan Reddy, Property Rights Of Women: Proposed Reforms Under The Hindu Law --174th Report,
    (Law Commission of India, D.O. No. 6(3)(59)/99-LC(LS), 2000)
14. B.P Jeevan Reddy, Property Rights Of Women: Proposed Reforms Under The Hindu Law --174th Report,
    (Law Commission of India, D.O. No. 6(3)(59)/99-LC(LS), 2000
15. Siddharth Priyadarshi Sharma, A Critical Analysis of the 174th Report of the Law Commission Of India, National Law University Delhi, 4 (2014)
16. Siddharth Priyadarshi Sharma, A Critical Analysis of the 174th Report of the Law Commission Of India, National Law University Delhi, 4 (2014)
17. Pravat Chandra Pattnaik and Others vs. Sarat Chandra Pattnaik and Another, A.I.R. 2008 O.R.I. 133
18. Sugalabai v. Gundappa A. Maradi and Others, I.L.R. 2007 K.A.R. 4790
19. Shivani Singhal, Women as Coparceners: Ramifications of the amendment in the Hindu Succession Act, Cochin University Law Review, 254, 2006
20. Shivani Singhal, Women as Coparceners: Ramifications of the amendment in the Hindu Succession Act, Cochin University Law Review, 255, 2006
21. Siddharth Priyadarshi Sharma, A Critical Analysis of the 174th Report of the Law Commission Of India, National Law University Delhi, 4 (2014)
22. Siddharth Priyadarshi Sharma, A Critical Analysis of the 174th Report of the Law Commission Of India, National Law University Delhi, 4 (2014)
    
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