Introduction
The Hindu Succession (Amendment) Act, 2005 is a significant piece of legislation which brought in major changes to the Hindu system of devolution of property. The core intent of the legislation was to bring the status of Hindu women on par with that of Hindu men, by abolishing discriminatory customs and practices of the religion. In this regard, Section 6 of the Act bestowed coparcenary rights upon Hindu daughters- previously restricted to Hindu sons only[1].
Four states in India brought in amendments to the Hindu Succession Act, 1956 (hereinafter HSA), preceding the 2005 central amendment. These four states- Andhra Pradesh[2], Tamil Nadu[3], Karnataka[4] and Maharashtra[5] introduced coparcenary rights for women in the years 1986, 1989 and 1994 respectively. The Central Amendment, against the backdrop of these longstanding state amendments, brought about a clash between a few provisions, specifically Section 6 of the Central Act. The savings clause, under Section 6(1)(c), is a cause of serious impediment in the implementation of the Amendment Act in these four states[6]. This blog aims to analyse the regressive nature of the said provision in light of the state amendments and its adverse impact on the rights of women belonging to these states. It emphasises on the counterproductive nature of the savings clause under Section 6, questioning its validity and exploring alternatives to constructively implement the same.
The Legislative Lacuna- Exploring the Gaps in the System
Section 6 (1)(c) of the Hindu Succession (Amendment) Act, 2005 reads-
“Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.”[7]
This provision puts a bar on the reopening of previous partitions and dispositions of property- at a time when women did not have coparcenary rights. It saves all transactions over properties which took place prior to the enactment in order to prevent a flood of litigation, especially over acts which occurred at a time when women did not have such rights. This clause also implies a prospective application of the Amendment Act, where no acts previously occurred were allowed to be challenged before a court of law. However, courts over the past decade and a half have taken a contrary stance and given a retroactive effect to the legislation, giving daughters coparcenary rights by birth, despite being born before the Amendments[8].
The problem that arises with the Section 6 savings clause is how it must be read along with the state amendments. Since succession is a subject of Entry 5 of the Concurrent List of Schedule VII of the Constitution[9], both the union and the states are competent to bring about legislative changes in succession laws. While Kerala abolished the Hindu joint family system in 1975 due to its inherently unequal nature, by introducing a new state legislation, the states of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra adopted a reformist approach- where they enacted state amendments to the HSA to give daughters coparcenary rights equal to that of sons. Hence, while the state legislation had given females coparcenary rights years before the amendment was introduced, the savings clause in the 2005 amendment had the effect of barring these women from challenging any wrongful partitions or disposition of property. They were not allowed to approach the court to redress their grievances or exercise their preexisting statutory rights under the state amendments. Furthermore, since the Central Amendment of 2005 only brought changes to the rights of female members of the family, it did not prevent male coparceners from bringing any action against transactions which took place before 20th December, 2004. This created an imbalance between the remedies available to a male and a female under the Act.
Overriding Effects of the Central legislation
According to the Doctrine of Repugnancy, when two statutes pertain to the same subject matter, and when the parliament intends to establish its law as a comprehensive set of rules and shows an intention to encompass the entire area, any state law, whether enacted before or after, would be rendered ineffective due to inconsistency. As codified under Article 254(1) of the Constitution[10] which stipulates that state amendments, if inconsistent with the central amendments, would be inoperative and the central amendment would prevail to the extent of the inconsistency. Therefore, the Central Amendment of 2005 takes precedence over the state amendments. As a result, the modified Section 6 of the HSA now reflects the prevailing legal stance concerning the inheritance rights of daughters, invalidating all the state amendments made so far.
For instance, if a family in Maharashtra effected a partition in 2004, but did not give the daughter her share in the partitioned property, she could enforce her coparcenary rights by taking the matter to court. However, according to the 2005 Amendment, no such partitions could now be challenged owing to the savings clause[11]. In this way, the overriding effect of the Central Act bars women from exercising any of their rights under the state amendments so long as they were contradictory. Without the ability to assert their rights before a court of law, the ameliorative steps taken by the states are completely nullified, creating the legislative gap. It shows a clear underestimation of the efforts of the four states to bridge the gender gap, which is a serious deviation from the principles of federalism envisioned by the Constitution. These four states foresaw the major social injustice in the customary practices of the Hindu community regarding property devolution, and its total disregard of women’s rights- which was largely backed by the 1956 codification of the same- years prior to the Centre. Rendering these changes ineffective shows a clear lack of discernment on the Centre’s part and its ambivalence towards the keen foresight of the aforementioned states.
Questioning the Constitutionality of the Clause
This issue of conflicting rules was first acknowledged by the Karnataka High Court in R. Kantha v. UOI[12]. The Court held Section 6(1)(c) of the HSA Amendment to be unconstitutional. It stated that the object of the amendment was to create equal rights between a daughter and son of a coparcener, and such a provision ultimately defeats that purpose. “There is no justification for the prescription of a cut-off date or a blanket ban on a daughter in enabling her to claim her due. Hence, the proviso to Section 6 (1)(c) of Act 39 of 2005 is irrational and has no nexus with the object of the Act and on the other hand would nullify its declared object.”[13] The court held that the proviso to Section 6(1)(c) of the HSA amendment, insofar as it is concerned with saving of any dispositions or partitions prior to 20th December, 2004, is violative of Art. 14 and 16 of the Constitution and lacks a rational nexus to the inherent object of the Amendment Act. Being one of the first cases to bring this issue to light, this judgement protected the rights of women coparceners under the state amendment.
However, recently in 2020, a division bench of the Karnataka High Court, took a different stance regarding the application of the three laws, completely overturning the position established by the High Court in R. Kantha. The Court in Padmavathi v. Jayamma[14], created three different timelines which would be in operation in Karnataka. i) From 1956, when the unamended Section 6 of HSA was applicable, ii) after 1994, when the Karnataka amendment to the HSA was applicable, and iii) post 2005, Section 6 of the HSA as amended by the Central Amendment Act, would be applicable. This analysis of the provision overturns the previous ruling, and upholds the validity of Section 6.
In light of such a recent development, the legislative gap has been reopened and the grievances of women who wish to challenge any disposition of property under the Karnataka State Amendment has reemerged. Furthermore, attempts to remedy such an issue were not even made in the other states. With Karnataka returning back to the original position, the problem has remained unaltered in all four states. Presently, women from these states cannot avail the remedy of challenging previous dispositions of property, despite having such a right under the state amendments.
Bridging the Gap- Retracing and Remedying the Issue
The adverse effect of the clause stems from two major developments- the retroactive application of the Act as established through recent judgements, and the intent to avoid encumbering the judiciary once the changes are implemented.
The applicative lacuna was partly created due to the retroactive interpretation of the statute, as envisioned by the legislature and upheld by the Supreme Court in 2020, in the case of Vineeta Sharma v. Rakesh Sharma[15]. In the absence of such an interpretation, a savings clause within the statute would have been rendered inoperative. Further, the Amendment Bill was tabled in the Parliament pursuant to the suggestions made by the Law Commission of India in its 174th Report titled ‘Property Rights of Women: Proposed Reform under the Hindu Law’, which highlighted the injustice against Hindu women with respect to inheritance and property rights. The report pointed out how the problem was deep rooted in, and perpetuated by the legislation itself, and hence required serious fundamental changes. The Parliamentary discussions which ensued, shed light on the intent of the legislature while framing this contentious savings clause. The deliberation on the wording of Section 6 of the Act clearly kept in mind the preexisting rights of the sons and how the rights of the daughters must be alleviated and brought on par with that of the sons. Such an amendment would completely change the framework of inheritance and survivorship, and without a savings clause for the same, a plethora of disputes would be brought to the courts, encumbering the judiciary. Keeping such shortcomings in mind, the legislature found it best to bar the challenging of any such dispositions to which the amended rights of the women might apply.
However, the state amendments were not taken into consideration while framing the provision. The legislature took the constitutionality of the clause for granted, omitting the existence of the state amendments to the same. Since inheritance and succession are subjects of the concurrent list, central laws for such matters cannot be made with a complete disregard to their state counterparts. This presumption of validity results in completely undermining the legislative authority of the states.
If the ultimate object of introducing such a clause was to prevent litigation and settled transactions from being disturbed, the same ought to apply to sons of a coparcener as well. However, since the amendment did not bring any changes to the rights of sons, it does not prevent them from challenging previous transactions. Hence, the need for such a clause is itself disputable. The share of a daughter being rendered obscure or beyond redemption on account of lapse of time or other intervening circumstances before 2004, must be a question of fact and must depend on the circumstances of each case. The operative law at the time of the transaction in question must govern its claims, not the one operative at the time of the dispute. In the absence of a retroactive application of the Act and a savings clause within it, each of the three aforementioned timelines would govern disputes within their respective timeframes without any overlaps. The courts in each of the four states must take active steps to rectify this statutory oversight and ensure the appropriate application of both the state and central laws in order to protect the rights of women.
References
[1] §6, The Hindu Succession (Amendment) Act, 2005.
[2] Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
[3] Hindu Succession (Tamil Nadu Amendment) Act, 1989.
[4] Hindu Succession (Karnataka Amendment) Act, 1994.
[5] Hindu Succession (Maharashtra Amendment) Act, 1994.
[6] §6(1)(c), The Hindu Succession (Amendment) Act, 2005.
[7] supra note 1.
[8] Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1.
[9] Entry 5, Schedule VII, the Constitution of India.
[10] Art. 254(1), the Constitution of India.
[11] supra note 6.
[12] R. Kantha v. Union of India, 2009 SCC OnLine Kar 307.
[13] Ibid.
[14] Padmavathi v. Jayamma, 2020 SCC OnLine Kar 3312.
[15] supra note 7.
