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?
Shalu Nigam1
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.

1
The author is a practicing advocate and a researcher working on gender, human rights and governance issues.

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The Supreme Court Judgement on 11.8.2020
The three judges bench of the SC comprising of Justice Arun Mishra, Justice S Abdul Nazeer and
MR Shah, in Vineeta Sharma v Rakesh Sharma2 (2020) has re-interpreted the provisions under
Section 6 of the Hindu Succession Act, 1956 as amended in 2005 in light of the conflicting verdicts
rendered by two separate Division Bench judgments, one in the matter of Prakash v Phulvati3
(2016) and the other in Danamma @ Suman Surpur v Amar4 (2018) while adjudicating several
connected matters. In Prakash v Phulvati, the bench comprising of Justice AR Dave and AK Goel
held that Section 6 is not retrospective in operation and it applies only when both the coparcener
and his daughter are alive on the date of commencement of the amended Act i.e on 09.09.2005.
Based on interpretation in Prakash v Phulvati the father must be alive for the daughters to claim
their succession rights. In Danamma’s case, Justice AK Sikri and Ashok Bhushan held that the
amended provisions of Section 6 confer full rights upon the daughter coparcener including that or
partition. This conflict in interpretations of the legal amendments made in HSA in 2005 has been
depriving many women of their rights to property when they approach the courts for claiming
benefits of the said provisions. The question before this court, therefore, pertains to giving
retrospective effect to the amended provisions when daughters are being denied the coparcenary
rights because the father was not alive when the Act of 2005 came into effect.
During the trial, arguments were raised that a Hindu joint family is a legal construction consisting
of male members descended lineally from a common male ancestor together with their wives or
widows, mothers, unmarried daughters, bound together by Sapindaship or family relationship. It
cannot be created by the act of the parties as the status of the coparcener is being determined by
birth. The legislative history shows that before the enactment of the HSA in 1956, women were
considered as not having any interest in the coparcenary property and on the demise of a coparcener
the share of the deceased coparcener devolved on the surviving coparceners. HSA made an inroad
into this system and provided that on the demise of a coparcener the share of the deceased
coparcener was to be ascertained by the way of notional partition as on the date of death. So, a
woman could inherit property but she has not been accorded the right as a coparcener till
amendments made in 2005. This is despite the fact that the 174th Report of the Law Commission
recommended for Kerala model giving coparcenary rights to daughters. Prior to 2005 amendments,
several states including Tamil Nadu, Andhra Pradesh, Kerala, Karnataka, and Maharashtra
introduced the state amendments in the Hindu Succession Act of 1956 extending equal rights to
daughters in Hindu Mitakshara coparcenary property.
During the arguments in the present case, the central government opposed the idea of giving a
retrospective interpretation to the 2005 law, and for this reason, it fixed a cut-off date of 20
December 2004 to avoid reopening of any settlement or partition decree prior to this date. The

2
Civil Appeal filed vide Diary no. 32601 of 2018 decided on 11.08.2020
https://www.livelaw.in/pdf_upload/pdf_upload-379766.pdf
3
(2016) SCC 36
4
(2018) 3 SCC 343

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court accepted this argument but emphasized that if a daughter seeks partition or a share, the same
cannot be denied on the basis or oral family settlement but on a final decree of a court or a
registered family settlement. The court while deciding the present case referred through several
other rulings and remarked “once a daughter, always a daughter. The daughter will remain a loving
daughter throughout her life… and a son is a son till he is married”. While rightly over-ruling the
verdict in Prakash v Phulvati, this three judges’ Bench clarified:
(Para 129) “Resultantly we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Amendment
Act 1956 confers the status of the coparcener on the daughter born before or after the
amendment made in the same manner as a son with same rights and liabilities;
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with
Savings as provided in Section 6 (1) as to disposition or alienation, partition or
testamentary disposition, which had taken place before 20th December 2004;
(iii) Since the right of coparcenary is by birth, it is not necessary that father coparcenary
should be living as on 09.09.2005;
(iv) The statutory fiction of partition created by provisio to Section 6 of the Hindu
Succession Act 1956 as originally created did not bring about the actual partition or
disruption of the coparcenary. The fiction was only for the purpose of ascertaining the
share of deceased coparcener when he is survived by the female heir, of class I as
specified in the Schedule of the Act of 1956 or the male relative of such female. The
provisions of the substituted Section 6 are required to be given full effect.
Notwithstanding that a preliminary decree has been passed the daughters are to be given
a share in the coparcenary equal to that of a son in pending proceedings for final decree
or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6 (5) of the Act of 1956, a
plea of oral partition cannot be accepted as the statutory recognized mode of partition
effected by the deed of partition duly registered under the provisions of the Registration
Act, 1908 or the effected decree of a court. However, in exceptional cases, where the
plea of the oral petition is supported by public documents and partition is finally
evinced in the same manner as if it had been affected by a decree of the court, it may
be accepted. A plea of partition based on oral evidence alone cannot be accepted and
to be rejected outrightly.”
These ruling makes the 2005 amendment retrospective and granted unconditional rights to the
daughters as equal to that of sons in a joint Hindu family. The bench said that “daughters cannot
be deprived of their right to equality conferred upon to them by Section 6 of the amendment Act”.
The decision challenged the male hegemony in the ancestral property of a Hindu family. The court
clarified that “the classic Shastric Hindu law excluded the daughter from being coparcener, which
injustice has now been done away with by amending the provisions in consonance with the spirit

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of the Constitution”5. Property rights are fundamental to women’s social economic and legal
security. In case, implemented in its true spirit, the ruling could make a drastic impact on the ways
the immovable property and the agricultural land is being transferred and inherited by the members
in the families and may enable empowerment of Hindu women in situations where families own
land and/or property.
Will it end entrenched discrimination against women?
Culturally, access to land and control of property or land is considered as a domain of males in the
patriarchal North Indian societies. As per census 2011, only 13 percent of farmland is owned by
women. Also, estimates suggest that women constitute 73.2 percent of agricultural workers and
almost 74 percent of the rural workforce, hold only 12.8 percent land6. Despite their intensive
labor, women are not counted as farmers because the majority of women do not own land. Another
study conducted recently in 2020, while using several sets of data in India has suggested that
“barely 16 percent women in rural landowning household own land, constituting 14 percent of all
landowners and owning 11 percent of all land”7.
The Constitution provides that agricultural land is a state subject. Therefore, states are empowered
to regulate the laws relating to land. There is no uniformity in the laws. Further, the principal of
land reforms recognized at the time of independence in 1947 was `Land to the Tiller’ and the tiller
is inherently recognized as a male. Moreover, most of the states follow personal laws or customary
practices in terms of inheritance of agricultural land. These inheritance provisions relating to
agricultural land are frequently discriminatory, whereby the rules benefit male heirs. For instance,
the Uttar Pradesh Zamindari Abolition Act, 1950, and the UP Revenue Code failed to recognize
daughters as primary heirs to the agricultural land. It is only in July 2019 that the UP Cabinet
approved an amendment in the Revenue Code to expand the rights of unmarried daughters to
inherit ancestral land. Prior to these amendments, the land would go to the state if the daughter’s
daughter were the only remaining heirs8. Though the 2019 amendment does not recognize the
rights of married daughters, yet it remains a milestone in the manner the land is distributed between
the sons and daughters within a Hindu family in UP. Similarly, Uttarakhand, where 90 percent of
farming related work is being done by women as wives, is planning to amend the Zamindari
Abolition and Land Reform Act of 1950 to give land ownership right to women9. In such a chaotic
situation where the interpretation of law is non-uniform, the judgment on Section 6 of the HSA

5
Para 66
6
Raman Shreya (2019) 73.2% rural women workers are farmers, but own 12.8% land holdings, IndiaSpend.com,
September 9, https://www.indiaspend.com/73-2-of-rural-women-workers-are-farmers-but-own-12-8-land-holdings/
7
Aggarwal B, Anthwal R and Malvika M (2020) Which women own land in India? Between divergent data sets,
measures and law, GDI Working Paper 2020-043, The University of Manchester, Manchester
https://hummedia.manchester.ac.uk/institutes/gdi/publications/workingpapers/GDI/gdi-working-paper-202043-
agarwal-anthwal-mahesh.pdf
8
Deo Shipra (2019) Daughter’s Inheritance Rights in Uttar Pradesh, The Hindustan Times, 26 August
https://epaper.hindustantimes.com/Home/ShareArticle?OrgId=98bb8933&imageview=0
9
Kadam Sanchita (2020) Uttarakhand to amend law to make women land owners, MattersIndia.com, July 22,
https://mattersindia.com/2020/07/uttarakhand-to-amend-law-to-make-women-land-owners/

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discussed above may be used to expand the scope of the state laws relating to land inheritance to
extend the rights of both married and unmarried daughters to inherit their ancestral land. Land
ownership is critical to the social and economic empowerment of women.
Further, written law is no guarantee to end discrimination. Constitution that has been adopted
almost 70 years back, promises equality and social justice, but in reality, and on grounds, these
goals have not yet been achieved. Practicing equality and democracy is a continuous process. The
state and society need to recognize and accept embedded socio-economic inequalities and have to
make a constant endeavor to transform social practices. Male lineage is a key barrier to women
demanding their rightful claim in the inherited property. The widespread belief is that a daughter’s
share is limited to her dowry. Lack of legal literacy, women’s reluctance to claim their right to
property, flaws in the implementation of legal provisions all add up to women’s woe and they end
up being deprived of their rightful entitlements10. Also, many daughters are still be stigmatized for
demanding their share in parental properties as done earlier, many are pressurized to give away
their rights in favor of their brothers to maintain cordial relations with the natal family after their
marriage. `Haq tyag’ of sacrificing rights is one of the custom prevalent in parts of Rajasthan,
Haryana and other states which involves women giving up their claims to the ancestral property.
Strong patriarchal traditions frequently translate into fear of violence or threat of violation
preventing many women to claim their inheritance rights. In such a situation, the judgment is a
welcome step in the right direction as it bestows the daughters with equal rights as that of sons in
the joint Hindu family’s property.
Also, apart from the equality argument, owning property gives an option to the women in an
abusive marital relationship to leave. This empowerment argument is important as it confirms
women’s economic independence and may deter marital violence in the long run. Research studies
have demonstrated a significant link between women’s ownership of land and reduction in
incidences of violence11. It is claimed that owning land or a house may strengthen a woman’s
fallback’s position and her tangible exit option and therefore can deter marital violence12. Several
research studies conducted over the years indicate that women’s ownership of property improve
their social standing within and outside the family, strengthen their decision-making ability and
provide them their source of livelihood, thus empowering them economically. A survey conducted
in 2015 of 256 women in Karnataka, Telangana, and Meghalaya found that the majority of women
interviewed felt that landownership has improved their mobility and security even outside the
home while others claimed that owning land has improved their situation of the perceived threat
from the outsiders13. Thus, women’s ownership of land is directly linked to reduced gender-based

10
Chowdhry Prem (2017) Women’s Land Rights: Gender Discrimination in Ownership, Sage Publications, Delhi
11
Panda Pradeep and Bina Agarwal (2005) Marital violence, Human Development and Women’s Property Status in
India, World Development, 33 (5) 823-850
12
Agarwal Bina (1997) Bargaining and gender relations: Within and beyond the household, Feminist Economics, 3(1)
1-15
13
Kelkar G, S Gaikwad and S Mandal (2015) Women’s Asset Ownership and reduction in Gender-based violence,
Landesa,
https://in.boell.org/sites/default/files/womens_asset_ownership_and_reduction_in_gender_based_violence.pdf

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violence. Women’s ownership of land and property helps to build women’s agency and enable
them to fight back the patriarchal violence.
Vesting women with economic entitlements through law strengthen the overall situation of women
and may alter the rigid social norms and perception while recognizing their claims to the property
ownership and control of resources. In order to practically ensure that women could avail of their
rights, it is essential to sensitize the legal and bureaucratic machinery towards the intent of such
amendments in the law. The provisions of different state’s laws relating to inheritance of
agricultural land and other forms of property rights should be amended to grant equal rights to
daughters in the land ownership as that of sons. The common men and women should be made
aware of legal provisions so that the families could enable the empowerment of women as
daughters rather than pressurizing them to relinquish their rights in favor of their brothers. Most
importantly, the need is to recognize the rights of women as individuals, and, as citizens. Making
women economically self-sufficient so that they are in position to assert themselves could help to
tackle many social barriers and may help in long run to challenge the male hegemony to shatter
the deeply embedded patriarchal mind-set. The personal laws of all religions may be looked into
to make them gender friendly. Eliminating patriarchy and pushing gender hierarchies in all
institutions will help to establish democratic values and in log run to create stable, equal and just
societies.

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