The Supreme Court has done well to remove the confusion over the interpretation of a clause in the Hindu Succession Act (HSA), 1956, caused by an earlier judgement of the court. The HSA was a progressive legislation at the time of its passage, but it fell short of recognising women’s rights in a family. It took about 50 years to recognise them and give legal backing to them. After much debate and a push from the Law Commission, Parliament enacted in 2005 an amendment to the 1956 law which held that a woman could be a coparcener (sharing inheritance in an undivided property) by birth “in her own right in the same manner as the son”. This was an important statement of rights because it ensured that there is no discrimination against women in the ownership and sharing of family property and men and women had equal rights to it.
However, there was some lack of clarity with the wording of the 2005 amendment. The Supreme Court ruled in 2015 that equal right was available to daughters if the father was alive in 2005 when the amendment to the 1956 law came into force, thus granting the right to “only living daughters of living coparceners’’. But another ruling by the court in 2018 held that a coparcener’s legal right flows from being born in the family and that it has nothing to do with whether the father was alive at the time of the 2005 amendment. The latest ruling has removed the incompatibility between the two rulings by upholding the 2018 ruling. It has declared that women have the right to equal property even if they were born before 2005 and whether the father was alive or not at that time. If the woman died before the amendment came into force, her share can be passed on to her children.
The judgement has finally put an end to male primacy in the sharing of ancestral property in the Hindu family. It has also ruled that registered settlements relating to sharing or alienation of property made before December 2004, when the amendment was tabled in the Rajya Sabha, cannot be reopened. This was to avoid disputes and litigation that would have resulted from giving retrospective effect without limit to the ruling. But the court has allowed opening of cases settled on the basis of the 2005 cut-off date and told high courts to decide such cases within six months. The judgement is important because equal right to property is a key factor in ensuring the equality of women with men and in empowering them. It will make gender justice more real to women.