Hindu Succession act amendment 2005 was one of the classic example and one law which was framed beautifully by our legislators but confused by different judgments given by courts by twisting the meaning of each and every word and by linking and delinking different section resulted into a mess where lots of cases are now pending in courts and innocent people are suffering. I do not understand why it has not been settled in last many years with the correct interpretation and who is responsible and accountable to do this task.
After few judgments of courts everyone is looking section 6(1) with section 6(5) bypassing the section 6(3). If section 6(1) of the section is seen in its individuality then it is applicable even when the father is alive and for married daughter Devolution of interest on the income of father is as soon as father will get it. That means if father is alive then he cannot spend his money without the consent of her married daughter who is now the joint member of her husband’s family. Let us consider there were three members in the family father, mother and daughter and mother is no more alive. Daughter after her marriage will accrue 100% rights in the father’s income as soon as father gets even his salary. Does it mean that father of the daughter has to take written permission from his daughter before spending the amount otherwise he is going to die without food if daughter does not give the permission of spending the amount? Looking section 6(1) in its individuality is the violation of the fundamental rights of the father.
It is very important to see the section 6(1) along with section 6(3) and then 6(5) progressively. Section 6 has limited retrospective effect by making clear in the section that existence of HUF is must on the day by looking into its wording “On and from the commencement , in a Joint Hindu family governed by the Mitakshara shall”. That means only daughters who were e.g. unmarried and are in HUF will get the right in fathers property by birth. These rights can only be claimed after the death not before to save the fundaments rights of father clearly defined in section 6(3). Section 6(5) is merely given an explanation of partition so that the rights of the daughter can be prevented against the documents which can be fabricated, concocted, after this Amendment Act came into force by antedating them. It should not mean that any disposition which is established and done by the other valid provision of the law in past and are on the records of the Govt. document should not be considered.
Social injustice of past thousands of year cannot be possible to give now and the purpose was very clear not to disturb any settled family who were in HUF and have divided the property in past and to save the interest of third parties.
Further section 6(3) “Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act” clearly specify that this act is applicable only after 2005 and which further strengthen the section 6(1) that HUF is must and father must be alive on the day act came to an existence.
It may be said that the section denoting the past element “which had taken place before the 20th day of December, 2004.” Is only for the daughter who were born before the act and still within HUF, then she cannot claim over the property which is already partitioned to provide the stability in the system.
Section (6) of the act is not extraordinary. There was no discrimination for daughters in past before the death of Hindu as it was expressed. It was left to the father whether he want to give his whole property to daughter or son or divide equally by making the registered separation before his death. Section (6) only gives the equal rights where there is a sudden death or father died without making any separation which was only given to son earlier in such scenarios. On and from the day of the amendment these rights are extended to the daughters. In this act it is no where specify that father still cannot make the separation before his death because it will be the violation of his fundamental rights. He still can choose to divide his asserts as per his wish before his death as it was earlier to the act of its self acquired property. He can also sell his property to the third party and his daughter or son cannot claim over such transaction made prior to his death .
I do not understand if this act is completely retrospective then why the justice to the daughter where partition is not done why not to all. Social injustice of past which prevailed from the origin of the Hindus cannot be given now and we must remember most important fact that women are an integral part of every family. Justice of one woman cannot be on the expense of the other because the families who are well settled from many years by dividing their properties but it is not as per 1908 act cannot be disturbed. They may have spent their own life time savings after the death of father to build a house on those properties. How it can be possible to divide such property. Also remember this family also may have wife and daughters who gets impacted.
Considering this law completely retrospectively leads to many questions if existence of HUF is not important in section 6(1) and Succession is opened before amendment.
1. How it is possible to prove if married daughter did not receive any movable asserts at the time of marriage because act talks about equal rights as of son not more than that.
2. Section 6(1) subsection c also talks about equal liabilities. How it has to be defined for past if the liabilities are taken by married daughter or not?
3. If the division of the property is already done before the act but not as per the 1908 act or decree of court then how it could be possible to predict the future for the family in past that in 2005 there will be a new act which will not accept this disposition. Previous laws do not specify or restrict the way partition has to be done.
4. Also what should be the law of limitation if daughter was married many years before the act and filing a case to claim over the ancestor property after several years of the amendment? 5. What is the justice for the third parties who bought the property just after the law when such interpretations of the courts were not available and spends their life time savings to see a dream of a house? How it was possible that point of time to understand this law for a common man when after so many years also courts are not clear about the law and different judgments are contradicting each other.