Interpreting The SC Order On Women's Right To Ancestral Property
Two dates were going to be the key to unlock the benefits women would be entitled to through the Hindu Succession (Amendment) Act, 2005. These dates were: December 20, 2004, the day on which the legislation was introduced, and September 9, 2005, the date on which the amendment got an approval.
Key changes were made in the source law -- the Hindu Succession Act, 1956 -- in 2005 to provide a Hindu daughter an equal share in her father's property along with her male sibling. The amended law is also applicable to Sikhs, Buddhists and Jains.
Until 2005, a married woman belonging to any of these religions became part of her husband's family upon marriage and enjoyed no right over her father's property. This was going to change for good. But, the two dates were going to restraint women's rights in two ways, and it was clearly stated in the text:
Women could not claim their share on a property if the partition had already happened before December 20, 2004 –-- the day the amendment was introduced.
To claim her share, it was imperative a woman's father was alive till September 9, 2005—the day on which the amendment assumed legal validity.
Later, many high courts passed verdicts that were not in line with the second clause. Considering it a social legislation that aimed to bridge gender disparity that should be applied retrospectively to attain the key object, high courts across India took a different line than that prescribed in the text.
Shooting such interpretations down, the Supreme Court (SC) recently held: “The text of the amendment itself clearly provides that the right conferred on a 'daughter of a coparcener' is 'on and from the commencement' of the amendment Act. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text … there is neither any express provision for giving retrospective effect to the amended provision nor necessary intent.”
“Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature,” the apex court held.
The SC also reiterated that partition of ancestral properties that took place before December 20, 2004, would remain unaffected by the 2005 amendment.