The IUP Journal of Law Review
Daughters’ Property Rights Under the Hindu Succession Act

Article Details
Pub. Date : Jan, 2019
Product Name : The IUP Law Review
Product Type : Article
Product Code : IUPLR11910
Author Name : Mohan R Bolla
Availability : YES
Subject/Domain : Law
Download Format : PDF Format
No. of Pages : 15

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Abstract

Earlier, daughter in a joint Hindu family had a right to sustenance, but not in the control and ownership of property. Daughters’ right to equality has been recognized by the law by amending the Hindu Succession Act, 1956 by the laudable initiative taken inter alia by the then chief Minister of Andhra Pradesh and the recent amendment of 2005 by the central legislature. But, the law has not been effectively implemented inter alia due to the male chauvinism, lack of awareness among the daughters and the greedy attitude of the brothers. The Hindu Succession (Amendment) Act, 2005—which substituted Section 6 of the Hindu Succession Act, 1956—came into force on September 9, 2005. However, even after the amended law came into force and the judicial pronouncements are in favor of the Hindu daughter, the daughter has been still neglected at the first instance, in her own natal family and everywhere, because of blatant disregard and unjustified violation of these provisions. If there is no conscious exercise of the right by the people, particularly the daughters, there cannot be effective enforcement of the right created by the law. This paper analyzes the legal position and narrates a typical case study of the factors affecting the Hindu daughter’s claim for the ancestral property.


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The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, “The Ideal Element in Law,” that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.”

Justice Krishna Iyer in Raj Kapoor vs. State,2 states that the superior jurisprudential value of dharma, which is a beautiful blend of the sustaining sense of morality, right conduct, society’s enlightened consensus and the binding force of norms so woven as against positive law in the Austinian sense, with an awesome halo and barren autonomy around the legislated text, is a fruitful area for creative exploration.3 As was aptly stated, the ‘superior jurisprudential value of dharma’ with ‘society’s enlightened consensus’ will only bring the binding force to law. If there is no conscious exercise of the right by the people, particularly the daughters, there cannot be effective enforcement of the right created by the law.

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