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Why Supreme Court’s judgment on daughter’s right to property is historic for India

The Supreme Court of India in a recent judgment has again backed the fact that the daughters cannot be deprived of their right of equality conferred upon them by Section 6 of the Hindu Succession Act, 1956. 
 
The judgment recognizes that in a coparcenary property, daughters have an equal right. The Supreme Court also stated that since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9th, 2005. The judgment was pronounced by Justice Arun Mishra in a Bench comprising Justice S. Abdul Nazeer and Justice M.R. Shah as well.
 
The matter came to court when one Vineeta Sharma, asking for her share as a coparcener before the Delhi High Court. Since there were conflicting views in the Supreme Court in several different cases. Later, the matter was referred to a larger bench that gave the latest judgement.
 
If you look at the history of the reforms of Hindu law, this is not an intrepid or path-breaking decision but a logical extension of the changes that have come so far.
 
In the present case, it was argued that the 2005 amendment recognising women as coparceners can only be prospective – that unless the father was alive on the date of the enforcement of the amendment Act, there could be no recognition of the daughter’s right; that the amendment was not intended to unsettle matters; that if a preliminary decree was passed, all that was left to be done was to demarcate shares by metes and bounds and hence it cannot be altered. The crux of these arguments was that the amendment operated prospectively and not retrospectively.
 
However, the Supreme Court has now held that the amendment has a retroactive effect. It explained: “The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier.”
 
From 1956…until the 2005 amendment, only the male members of a Hindu family had coparcenary rights. And coparcenary property is a right that comes with birth. Now, female members have the same right. It is quite simple. It is a right recognised from the time the daughter is born just as if she were a son. This status, therefore, operates from the time she is born. “Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage,” the judgement said. 
 
The Supreme Court said the injustice of inequality “has now been done away with by amending the provisions [of the Hindu Succession Act] in consonance with the spirit of the constitution.” Any transaction that is genuine and has become final is saved and is not vulnerable to attack and cannot be re-opened. But sham transactions which are bound to be trotted up shall not stop the coparcener daughter from getting her share.
 
While the change has taken many decades between 1956 and 2020, it is historic on so many levels and is finally here to stay. A step towards gender equality for sure! 

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