Introduction:
One of the most welcomed and awaited verdicts on the rights of women, especially as daughters in the property of the family by birth, had arrived in a famous case of Vineeta Sharma v. Rakesh Sharma, which was also part of various Special leave petitions dealt with that major issue. It set up a precedent for the years to come and has over-ruled the previous verdicts, which came out contrastingly to this decision. This article will give a case brief on the major contentions and issues.
Facts:
In order to know the fact, it is important to look into the original petition filed before the Delhi High court. The facts of this case are that the appellant’s (plaintiff in original suit) father had a property with a house built. The appellant’s father, along with his family, lived jointly and had rented out a house in the same property to another in the same property. She contended that as her father had died intestate, she should have the right over the property along with other heirs. She is entitled to 1/4th of the property and had said the property had never been treated as Hindu undivided family property, and she is entitled to a 40 lakh amount. Justice Mehta had favored the appellant and held in her favor. But, since the case is dealing with section 6 of the amendment act of 2005, this case arose along with other cases to determine the retrospective nature of section 6 of ac of 2005.
Issues:
Whether the right under the 2005 amendment act shall be applicable to daughters who were born before the date of the enforcement of the act or not?
Whether the right in coparcenary property, as per amendment in 2005, is available to the adopted daughters or not?
Whether section 6 of the amendment acts of 2005 is applied retrospectively or not?
Laws:
Section 6 of Hindu Succession (amendment) act, 2005:
Section 6 of the 2005 amended Hindu succession act deals with the devolution of interests of the coparcener in the coparcenary property.
Arguments:
Learned Solicitor General of India, Mr. Tushar Mehta, who appeared as counsel on behalf of Union of India, argued as follows:
Basing his argument on equality under the constitution, he argued that the denial of rights to the daughters is discriminatory in nature.
He argued that the amendment act of 2005 to section 6 should not be seen as retrospective; rather, it is retroactive in its operation as the amended section allows the daughters of the coparceners to become property owners with rights.
He also argued that any such right over the coparcenary property would not affect the previous partition that took place before 20-12-2004, that is when the bill was before the Rajya Sabha.
He also contended that the Mitakshara law of coparcenary has led to discrimination of these daughters on the ground of gender. It was thus, oppressive and had also taken away the equality guaranteed by the Constitution of India.
Learned counsel, Mr. Venkataramani, Amicus Curiae argued as follows:
It was argued that coparcenary right was conferred on the daughters only through the amendment act of 2005 to section 6 and not prior to the amendment.
In that way, he contended the rulings in the Phulavati case and Danamma case has to be held valid, and according to these rulings, section 6 of the act is prospective alone, and the rights and liabilities to the daughters is prospective and not retrospective in nature.
Conclusion:
The court analyzed various perspectives to come to a conclusion in this case. It took note of the nature of coparcener’s rights in the Joint Hindu family and how a person becomes a coparcener after the death of one of the elders or other coparcener in the lineal descendants in a family. They referred that these rights shall exist only till the time of partition and until the family gets divided and coparceners are given their part at the time of the division of family property. In that way, the court observed a few points before coming to its results.
It stated that there is a legal fiction that is created through the amendment act of 2005, which ultimately treated the daughters to be coparceners at the time of birth itself and from the date of commencement of this act, they become coparceners irrespective of whether father if such daughter is alive or not. This is because of the fact that, as the rights are conferred by the act from the date of her birth itself, the fact of her father’s presence or absence is not at all required. Through this observation, it rejected the view that daughters shall become coparceners only on the death of their father.
With respect to the position of the adopted daughters of the coparcener, the court observed that there is no contention or dispute with the prevailed custom that a male child should only be adopted and not the female child. The terms of the legislature directly denote the coparcenary rights shall be vested as soon as the daughter is born after the amendment act. Since it requires the concept of right by birth, the adoption should be distinguished from the others. Hence, there should be an unobstructed heritage.
The brief of the court’s decision or the verdict has been provided in paragraph 129 of the judgment. The core of that paragraph states as follows.
In a major question of retrospective effect of the substituted section 6 of the 2005 act, they answered that the rights and liabilities of the daughter should be the same as that of a son who was born before or after the amendment of 2005.
The daughter shall have the rights over the same unless there is a partition or alienation that took place prior to this effect.
It noted that there is no precondition of the father’s existence required to become the coparcener.
All the decrees pending on the question of whether the legal fiction created under the 1956 act shall be effectuated or not should be decided on more reliance on the amended section keeping the earlier section only for the determination of shares of class 1 heirs.
Thus, in order to uphold the very essence and the nature of the principle of equality under the constitution of India, the court decided that the amended act shall have retrospective effect and shall apply accordingly.
