Post-2005, the Hindu Succession (Amendment) Act, 2005 has changed the status of the daughter in a Hindu joint family. Now, she is not only a joint family member but also a coparcener by birth. However, daughters have dual membership post-2005. This means that she is a coparcener in her natal family and a joint family member in her husband’s family.
Hindu Joint Family Member
A joint Hindu family consists of all persons lineally descended from a common ancestor, up to any generation, and includes their wives and unmarried daughters. However, a Hindu coparcenary is a much narrower body than the joint family as discussed above.
A joint family member is necessary only for the existence of the joint Hindu family and not its continuance. “The death of the common ancestor does not mean that the joint family comes to an end. Upper links are removed and lower are added, and so long as the line doesn’t become extinct, the joint family continues and can continue indefinitely, almost till perpetuity.”[1]
The position of a female member in the joint Hindu family was minimal in nature. She had no independent rights except the right to maintenance and was dependent on the male counterparts of the family. She had no absolute rights in the joint family.
Status of the Daughter in a Hindu Joint Family under the Hindu Succession (Amendment) Act, 2005
Laws have to be changed and amended to respond to the needs of a dynamic social system, at regular intervals. There existed ambiguities and inequalities in the Hindu law as has been discussed above. Recognizing this, the 174th Report Law Commission in 2000 recommended undertaking a study of certain provisions regarding the property rights of Hindu women.
The significant change of making all daughters (including married ones) coparceners in joint family property has been of great importance for women, both economically and symbolically. Economically, it can enhance women’s security, by giving them birthrights in a property that cannot be willed away by men. Also, as noted, women can become ‘Kartas’ of the property. Symbolically, all daughters and sons are equally important members of the parental family. It undermines the notion that after marriage the daughter belongs only to her husband’s family.
Now under the amendment, daughters will now get a share equal to that of sons at the time of the notional partition, just before the death of the father, and an equal share of the father’s separate share.
Conclusion
The main objective of the Amending Act is the removal of discrimination against daughters inherent in the Mitakshara coparcenary. While doing so, a lot of confusion has been created regarding the requirement of being a joint family member to be a coparcener. A married daughter without being a joint family member can be a coparcener and also a Karta. This questions the very system of coparcenary that existed. As has been discussed above the daughter’s share should be determined at the time of marriage itself to make the law less complicated. Further, discrimination against other female members of the family has not been dealt with in the amendment and instead the effect of this amendment on them decreases their share in the family in which they are married.
Further, there is no clarity about the share of a daughter’s daughter in the property in her natal family. This is irrespective of the fact that it is discriminatory as it doesn’t talk about the share of the daughter’s son at all. The married daughter’s share in her father’s coparcenary will only serve to help her husband’s family leading to social evils like female foeticide and female infanticide. The rights of women have also been in question. Every time an Act related to the status of the women has enacted
(i) the customs,
(ii) the people the prevailing laws
makes it difficult for the new law to be in force.
Therefore, the dual membership of the daughter after the Amendment of 2005 needs to be looked into in the light of the irregularities. As it would create more problems instead of solving them.
[1]Dr. Paras Diwan, FAMILY LAW, 10TH ed. 2013, p. 381.
Abhishek Khare
Associate in Law Offices of Kr. Vivek Tanwar Advocate & Associates