India: Sharma v. Sharma – Constitutional Equality for Hindu Women?

by | Sep 6, 2020

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About Shama Abbasi

Shama is an Assistant Professor at the Jindal Global Law School. Her research interests lie in the areas of intersection among gender, state power, religion and law.

Citations


Shama B.H. Abbasi, “India: Sharma v. Sharma – Constitutional Equality for Hindu Women?”, (OxHRH Blog, September 2020), <https://ohrh.law.ox.ac.uk/india-sharma-v-sharma-constitutional-equality-for-hindu-women> [Date of access].

On 11th of August 2020, a three-judge bench of the Indian apex court decided that its previous interpretation, of the words contained within s.6 of the Hindu Succession Act, was not accurate. Previously, in the case of Prakash v. Phulawati, the Indian Supreme Court had opined that in order for a Hindu woman to access ownership of the Joint Family Property [‘JFP’], her father must be alive on the date of enactment of the Hindu Succession (Amendment) Act, 2005. This amendment was based on the 174th Law Commission Report, that had proposed reform under Hindu succession law to enable ‘equality’ for Hindu women in property ownership and inheritance.

However, in Sharma v. Sharma, this position was overruled, by relying on the statement of Objects and Purpose of the 2005 amendment. This statement declared that the amendment sought to achieve constitutional equality, as promised under Art. 14 and 15 of the Indian Constitution, to all Hindu women. The male Hindu counterparts, in a Mitakshara Coparcenary always had a right to their father’s property, by birth. This coparcenary relationship was established at the moment of their conception. The rules on partition of coparcenary property reflected this. In a textbook, explaining these rules to law students, Poonam Pradhan Saxena states that “If the child born is a male, his share should be allotted to him, and if the child is not born alive or is a female, such share should be redistributed among all the coparceners.” The sentence clearly implies that with respect to coparcenary or joint family property, a female child’s position was the same as that of a child born lifeless. It is thus no wonder, that the Law Commission, and eventually the legislature, saw sense in levelling out the rights between Hindu sons and daughters. The reasoning in Sharma v. Sharma relied on the fact that the coparcenary is created at the time of birth. Since s.6 stipulates that “… the daughter of a coparcener shall,― (a) by birth become a coparcener in her own right the same manner as the son; (b) have the same rights in the coparcenery property as she would have had if she had been a son;…” The court concluded, that though the act was not retrospective, it was in-fact retroactive [Dr. Saumya Uma analyses the case here]. Thus, though the daughters could only claim ownership rights after the date of amendment, the rights arose at the time of birth, just like that of a son. Thus, the daughter’s birth, much like that of a son would activate this right, and daughters could claim it, irrespective of whether their father was alive on the date of the amendment.

This long overdue clarification may inadvertently jeopardize the position of Hindu women. A single judge bench of the Bombay High Court in 2012 had declared that the scheme of succession under the Hindu Succession Act, even after its amendment in 2005, is ultra vires. The judgement was based on a sound socio-legal analysis of the Act, juxtaposed with the Article 15 requirements of the Constitution. Justice Dalvi opined that “The provisions in Sections 8 and 15[Hindu Succession Act] show discrimination between Hindu males and females. They show discrimination only on the ground of gender.” Sections 8 and 15 speak of how the separate property owned by a Hindu man and a Hindu woman would devolve, respectively, upon their death. The Hindu man’s primary heirs remain his blood relatives, while a married Hindu woman’s property does not devolve on her natal family unless there are no “heirs of the husband”. This coupled with the fact that upon a coparcener’s death, her property is “notionally partitioned” and devolves upon her legal heirs, may become a greater cause for concern for Hindu females. India’s social set-up often leads to great evils like female foeticide. If the populace is angered by this move of the apex court, and start believing that a married daughter would cause their family’s property ownership to decline, it will not bode well for India’s daughters. The only constitutionally valid system of ownership and inheritance may be the one suggested by the Law Commission Consultation Paper in 2018, an abolition of the coparcenary system altogether.

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