The Hindu Succession Act, which set the legal framework for inheritance laws among Indian Hindus, was enacted in 1956. But it was only in September 2005 that an amendment to Section 6 came into force, granting daughters equal rights to a share in ancestral property.
One hitch remained. Would the new law be applicable prospectively, that is, could only those daughters born after September 2005 assert these rights to familial property? Last month, the Bombay High Court ensured this would not be the case. Sitting on appeal against a number of conflicting judgments, a full bench of the Court held that Section 6 would indeed have retrospective effect, because that was mandated by the language of the statute, both letter and spirit.
The amendment to Section 6 was the result of a tireless crusade by women’s rights activists such as Indira Jaising, Bina Agarwal and Lotika Sarkar. The amendment did away with the pro-male bias in existing Hindu law in the division of ancestral property – property that in the system of Hindu inheritance referred only to the title holder and three generations of male heirs. Women were not entitled to claim a share in ancestral property, and had to remain content with whatever male members of the family thought fit.
But the amendment seemed to contain conflicting clauses. One clause said that daughters "shall by birth" have rights to an equal share in the family property "on and from the commencement of the 2005 Act". But another clause contained an exception: that no division of property completed before December 20, 2004, would be affected by the new law.
The phrase “on and from” would mean that the benefits of the law would accrue only to future cases. But then the clause, “shall by birth” would seem to send the opposite message. The Court, however, decided that the phrases could be read in consonance.
The court asserted that the female heirs of those who died before September 9, 2005, would not be barred from claiming rights under the amended law. The court held that though act commenced took effect from that date in 2005, but that it was not a new law. It had been effect from 1956, and had only substituted Section 6. Thus, the substitution applied from 1956 onwards. It belated recognition of a right that was long overdue.
It remains to seen how the Supreme Court will deal with this interpretation if the ruling is challenged.
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One hitch remained. Would the new law be applicable prospectively, that is, could only those daughters born after September 2005 assert these rights to familial property? Last month, the Bombay High Court ensured this would not be the case. Sitting on appeal against a number of conflicting judgments, a full bench of the Court held that Section 6 would indeed have retrospective effect, because that was mandated by the language of the statute, both letter and spirit.
The amendment to Section 6 was the result of a tireless crusade by women’s rights activists such as Indira Jaising, Bina Agarwal and Lotika Sarkar. The amendment did away with the pro-male bias in existing Hindu law in the division of ancestral property – property that in the system of Hindu inheritance referred only to the title holder and three generations of male heirs. Women were not entitled to claim a share in ancestral property, and had to remain content with whatever male members of the family thought fit.
But the amendment seemed to contain conflicting clauses. One clause said that daughters "shall by birth" have rights to an equal share in the family property "on and from the commencement of the 2005 Act". But another clause contained an exception: that no division of property completed before December 20, 2004, would be affected by the new law.
The phrase “on and from” would mean that the benefits of the law would accrue only to future cases. But then the clause, “shall by birth” would seem to send the opposite message. The Court, however, decided that the phrases could be read in consonance.
The court asserted that the female heirs of those who died before September 9, 2005, would not be barred from claiming rights under the amended law. The court held that though act commenced took effect from that date in 2005, but that it was not a new law. It had been effect from 1956, and had only substituted Section 6. Thus, the substitution applied from 1956 onwards. It belated recognition of a right that was long overdue.
It remains to seen how the Supreme Court will deal with this interpretation if the ruling is challenged.