A quiet burial to women’s rights in patrimony?

With the Constitution of India, we committed ourselves to creating a new inclusive social order, amongst other things, by improving the status of women. Pursuant to the constitutional commandment contained in Article 15(3), in order to achieve this singular objective our Parliament enacted the Hindu Succession Act of 1956. This Act attempted to reform the existing social structure that was premised purely on patriarchal principles, giving primacy to males over females. 

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The Act made a drastic departure from the traditional course mainly in two respects. Firstly, it legally recognised that thenceforth a woman is capable of holding property in her own right. Section 14 of the Act of 1956 clearly stipulates that after coming into force of this Act, “any property possessed by a female Hindu” (to be read as women in general), “shall be held by her as full owner thereof and not as a limited owner.” Secondly, a daughter is given a “share” in the property of her father along with the son. Under Section 6 of the said Act, however, the share given to a daughter was extremely small as compared to the one given to a son. For instance, after the death of the father, who left behind a son and a daughter, the son would get three-fourth  of ancestral property; whereas the daughter only to the extent of one-fourth. Giving her “something” in the patrimony was considered in itself revolutionary, nevertheless awarding her a denuded share was patently unjust and discriminatory.

It took nearly 50 years since 1956 to undo the unjust. The Parliament eventually took a bold initiative in enacting the Hindu Succession (Amendment) Act, 2005, with the avowed objective (as stated in the Statement of Objects and Reasons) “to remove discrimination as contained in Section 6 of the Hindu Succession Act, 1956, by giving equal rights to daughters in the “Hindu Mitakshara coparcenary property as the sons have.” This was accomplished by substituting a new Section 6, along with an Explanation that added safeguards for protecting the daughter's interest in place of the old corresponding provision. However, some serious discrepancies had crept in that needed to be removed.  In the law-making-process, we need to think comprehensively, especially to dismantle entrenched age-old practices. 

The Law Commission of India, in its 204th Report (February, 2008), recognised those omissions as a part of “legislative inadvertence,” and, therefore, recommended rectification.  However, the said Report, while having a second look at the amending Act, made some suggestions that were regressive in nature, inasmuch as they tend to weaken the support provisions for females, particularly mothers as compared to fathers. For preventing the pervasive discrimination prevailing against women in relation to laws of inheritance and succession of property amongst the members of a joint Hindu family, what is really required is not just making daughters as “coparceners,” because that only “upsets the existing arrangement of the family without providing its viable substitute.” The Law Commission of India in its 208th Report (July, 2008) recommended the amendment of'Explanation' appended to the new Section 6 by the amending Act of 2005. The recommendations were “unfair to the fair sex.” Acceptance of the Law Commission's recommendations for widening the scope of Explanation, by including oral partition and family arrangement within the ambit of the definition of partition, therefore, would nullify the strategic protection of the daughter's interest in the Hindu Joint family system just in the name of preserving peace, happiness, honour and welfare of family.

What has happened is likely to be perceived as “truth is stranger than fiction.” The amending Act of 2005, which attempted to dismantle disparity between sons and daughters in the matters of equitable division of ancestral property, has been done to death by the Parliament through the Repealing and Amending Act, 2015. 

A look into the repealing-enactment process reveals its intriguing character.

The Repealing and Amending (Third) Bill, 2015, that fructified into the Act of 2015, carried as many as 37 Acts for the consideration of the Parliament. About 35 of these Acts listed in The First Scheduleof the Bill were recommended to be repealed, and the remaining two Acts listed in The Second Schedule were recommended for minor amendments. Out of 35 Acts recommended for total repeal, 32 Acts were Amending Acts, including the Hindu Succession (Amendment Act of 2005); and the remaining three were principal Acts, including the two that were pre-constitutional. The recommendations for repeals and amendments were made by at leastthree committees, including the Law Commission of India, after “a comprehensive review of laws and the legal system with a view to remove incoherent and redundant laws. The Bill drafted on the basis of recommendations was introduced in the Lok Sabha on May 13, 2015, by the Law Minister.  On May 13, 2015 itself, the Bill was passed; received the assent of the President; and notified in the official gazette to become an enforceable law of the land. 

Two issues need serious pondering.  One, in general, could we describe all the 35 amending Acts enacted since the year 1999, without deliberating the principal Acts enacted much earlier in the 1950s, as totally “incoherent and redundant”?  

Two, in particular, should we repeal the amending Act of 2005 that sought to destroy perpetuation of discrimination merely on grounds of sex, and give it a quiet burial for returning to the hoary past without any debate, discussion or deliberation? The aberrations to the amending Act should be removed by giving the daughter an equal share in patrimony without resorting to the quick-fix of making her a “coparcener” as envisaged under new Section 6 of the amending Act of 2005. This would do justice to the daughter, without disrupting the joint family setup. 

The writer, founding Director (Academics), Chandigarh Judicial Academy, is a former Professor and Chairman, Department of  Laws, Panjab University, & UGC Emeritus Fellow.