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Texas Tech Univ. School of Law

Friday, January 29, 2021

A Hindu Daughter’s Right to Property: Is the Retrospective Amendment of Section 6 of the Hindu Succession Act a Step Towards Women’s Economic Empowerment?

Estate planning
Shalu Nigam recently published an article entitled, A Hindu Daughter’s Right to Property: Is the Retrospective Amendment of Section 6 of the Hindu Succession Act a Step Towards Women’s Economic Empowerment?, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. 

When Karl Marx explained his famous theory about the class conflict between the bourgeoisie and proletariat, he ignored those societies where the property and land ownership significantly play an important role and conflicts may be initiated on the basis of who owns and controls the material resources within the families or societies. More specifically, in India, an agricultural economy, the land holds not only economic but also an emotional value for individuals mostly from marginal families who may own smallholdings and/or other immovable property. As per the law, both men and women can acquire property and land through different ways such as purchase, inheritance, gift, or transfer by government. Yet, inheritance remains a significant option where land is privately owned. In the patriarchal North Indian society, for centuries, it is the male lineage that determines the ownership of the land and the control of the family property. Women, in such situations, where they hardly control any resources, are in financially constrained position than men in their ability to purchase any land or property. Therefore, for ages, Hindu women as daughters, mothers, and wives are facing economic discrimination within the hierarchical, unequal, and autocratic families. Owning immovable property or a piece of land or controlling economic assets, is a distant dream for the majority of women.

The amendments made in Section 6 of the Hindu Succession Act (HSA) of 1956 in the year 2005 grant the substantial equal right to daughters as that of sons in a Hindu joint family to benefit Hindu women who constituted 80 percent of women population in India. However, there are problems with the interpretations of this provision, mostly in cases, where the fathers have died prior to 09.09.2005, the courts have denied daughters their right to be the coparceners in such properties. It is on 11.8.2020, that the three judges’ bench of the Supreme court, in a landmark judgment has clarified that the amended provisions of Section 6 of the HSA to provide the daughters equal rights as that of sons in a joint Hindu family retrospectively and therefore the death of father before 09.09.2005, the day the amendments to HSA 2005 came into existence, has nothing to do with the daughter’s rights in the family property. This judgment has paved a way for the constitutional value of equality and democratic norms in an unequal world of the Hindu joint family. It is seemingly a step to make biased personal laws more gender-equal without any pre-conditions thus may lead to the economic empowerment of Hindu women in the long run. This article will discuss this interpretation of the Supreme Court in light of expanding the scope of women’s rights as daughters in Hindu families and argues that a lot more needs to be done to alter the personal laws to transform the patriarchal norms to bring constitutional values of equality, justice and democracy within families and societies not only for a women from Hindu communities but for all women.

https://lawprofessors.typepad.com/trusts_estates_prof/2021/01/a-hindu-daughters-right-to-property-is-the-retrospective-amendment-of-section-6-of-the-hindu-success.html

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