Hindu Women Have Equal Rights in Ancestral Property
The Honourable Supreme Court of India has recently ruled that a Hindu Women is entitled to 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 propery 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 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, grand-son 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, inspite 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 marriage expenses of the females in the family. It remains to be seen what can be the legal consequences of such obligation.
The present Judgment (Vineeta Sharma v. Rakesh Sharma CWP 2018  ) given by the honourable 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.
— Arunika Mishra
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