Hindu Women Have Equal Rights in Ancestral Property The Honourable Supreme Court of India has recently ruled that a Hindu woman is entitle...
Hindu Women Have Equal Rights in Ancestral Property
The Honourable Supreme Court of India has recently
ruled that a Hindu woman is entitled to an equal share in the Ancestral Property.
Therefore, she is entitled to be a 'coparcener' like her brothers. A coparcener
is a legal heir, meaning that he/she is entitled to inheriting property from
his/her ancestors. Before 2005, this right was based upon customary law as well
as the Hindus Succession Act, 1956. According to section -6 of the latter, only
the male members of the family were recognized as coparceners and could
rightfully inherit Ancestral property. The Act uses 'Hindu' as an inclusive
term and is applicable to everyone who is not a Muslim, Christian, Parsi, or
Jew.
Following a legislative amendment in September 2005
to the Hindu Succession Act, [Hindu Succession (Amendment) Act, 2005], the
discrimination was removed. Women were given explicit recognition as
coparceners. Even the female children of male coparceners are now recognized as
legal heirs, entrusted with succession rights (succession is a legal term and
refers to the process of inheriting a title, office, property, etc.). Further,
if a female coparcener dies, her children (including her daughters) will be
entitled to inherit her share from the ancestral property. The right to share
in the ancestral property is now guaranteed to a widow of a pre-deceased son as
well. Therefore, if a daughter-in-law of a house remarried due to early demise
of her husband (son, grandson of the family), she will still be entitled to
inherit the ancestral property. One of the fundamental rights that arise after
becoming a coparcener is to seek partition of the ancestral house or the house
in which the ancestral family resides as a Hindu Undivided Family. This is
generally referred to as the "Right to enforce Partition" in legal
parlance. Along with this, the female coparcener enjoys the Right to
Maintenance, that is, she is entitled to receive necessary expenses out of the
estate of the family, including for her children or family members she is bound
to maintain. This will include necessary expenses for marriage, education, and
ritualistic ceremonies as well. If you are a female coparcener, then you must
know that you also have the right to seek legal restrain of someone (including
family members) who obstructs or threatens to inhibit the enjoyment of your
rights. By virtue of being a coparcener, a woman is also entitled to
sell/dispose of her share in the ancestral property.
It is important to note here that the right to inherit
ancestral property is not without collateral duties. The Hindu Succession
(Amendment) act bestowed rights as well as liabilities upon the female
coparcener. Therefore, a female coparcener has same duties towards her
ancestral property and elder coparceners, like her male counterpart. This means
she has the same duties to maintain the property, prevent misuse and
degradation of the property etc. A crucial question here is whether a woman is
entitled to become a
“Karta”, that is, the guardian and manager of the ancestral property. Although
the judicial precedent remains unclear, the legislative intention certainly
points towards a positive. Therefore, the senior-most member of the Hindu
Undivided Family, capable of maintaining and guarding the property, can act as
the Karta of the family. However, owing to the customary tradition of changing
residency to the Husband’s house after marriage, the capacity to manage
property is considerably reduced and even influenced. This is a major concern
behind entrusting the position of a Karta to a woman.
With respect to expenses incurred on marriage, a
daughter is not liable to be answerable to her male counterparts. Therefore, in spite of becoming an equal heir, the marriage of the daughter remains a legal
obligation of the family. However, the female members of the family, by virtue
of being coparcenaries, are duty-bound to equally contribute to the marriage
expenses of the females in the family. It remains to be seen what can be the
legal consequences of such an obligation.
The present Judgment (Vineeta Sharma v. Rakesh Sharma
CWP 2018 [2020] ) given by the honorable Supreme Court of India dealt with the
question of the applicability of the amended law before 2005. The Supreme Court
has now made it clear that a daughter born before 2005 is also entitled to the
benefit. If the father of the female coparcener died before 2005, even then she
cannot be excluded from her right to inherit the ancestral property. Thus, the
amendment is now retrospective in scope.
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