One of the biggest struggles that women have faced in India and elsewhere is being reduced to property – before marriage, she is the property of her parents and after marriage, she is the property of her husband. This structure has resulted in the removal of agency in the woman, and thereby, any right to inherit actual property.
Traditionally, a joint Hindu family is considered as comprising lineal descendants of a common ancestor. This tradition flows from the Mitakshara school of law, which is a Hindu system based on a legal commentary on the ‘Yajnavalkya Smriti’. This commentary was written by a scholar named Vijñāneśvara in the eleventh to twelfth century. This school of law applies to most of India, excepting Assam and Bengal.
Mitakshara law was codified during British rule over India for administrative ease. Simply put, a joint family consisted of a male head called the ‘karta’, his wife, his sons and their wives, and his unmarried daughters. Upon marriage, a daughter ceased to be part of this family.
A ‘coparcenary,’ on the other hand, is a unit of a joint family that owns property. ‘Coparcenary’ property belongs to the joint family or a unit within it. To explain through an example, if your grandfather is the oldest male head of your paternal family, he is the karta. If he has inherited property that was not willed to him, such property is considered the ‘coparcenary’ property of the joint family unit of your grandfather, his wife, his sons and their wives and children (aside from married girls), and his unmarried daughters. Upon the death of the karta, the coparcenary property is inherited by his sons in equal portions, who then become the karta for the portion of property they inherit. Alternatively, any member of the joint family can initiate partition proceedings in a court, by which the coparcenary property is divided between the persons inheriting it. This is differentiated from self-acquired property, which is assets acquired by any person during the course of their life. Self-acquired property can be willed by the holder of the property to any person, or is inherited by the person’s spouse and children in equal parts. These provisions are codified in the Hindu Succession Act, 1956.
According to this Act, women were not allowed to inherit coparcenary property. However, in 2005, an amendment was introduced by which women became part of the joint family regardless of marital status and gained the right to inherit coparcenary property. The objective for this amendment was stated as:
“It is proposed to remove the 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. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section."
However, there was significant confusion on how this was to be enforced. In a blow to the right of women to inherit, the Supreme Court in 2016 held that this right cannot be applicable retrospectively. This meant that women were not allowed to inherit coparcenary property if the concerned karta had passed away before the amendment came into force. There were also contradictory judgments on the same topic.
Finally, in 2020, this issue was referred to a 3-judge bench before the Supreme Court, in Vineeta Sharma v. Rakesh Sharma. In this case, the Supreme Court laid this issue to rest and held that a woman’s right to inherit coparcenary property is retrospective. Regardless of when the father has passed away, the woman will be entitled to inherit. This also permits reopening of old cases where women were denied coparcenary property. The Supreme Court observed that the right to inherit coparcenary property stems from birth, and that therefore, it cannot be based on the time of death of the father.
This is a significant development in law, and a game changer for women. Women have systematically been excluded from property ownership in various ways. There have been several instances of women desperately needing assets for survival and being denied coparcenary property based on regressive traditions. Equal right to inherit stems from birth and is extremely important as it provides the holder with the ability to control resources. It is a human right that helps enable and realise other rights.
A millennium old commentary based on a text written in the 3rd-5th century BC cannot be the basis for laws in this day and age. These are completely arbitrary impositions enforced and perpetuated by male governments and legislators. It is important to spread awareness regarding this legal development, as it can remedy past injustices and give many women a new lease on life.
(Edited by Varsha Roysam)