WHAT IS THE RIGHT OF A MARRIED DAUGHTER? – HIGH COURT’S WIDE INTERPRETATION IN PUSHPALATHA CASE OF REGULAR FIRST APPEAL NO. 326 OF 2004.

The bill prepared by the Law Commission contained a provision making the amended provision under Hindu Succession Amendment Act not applicable to married daughters. That is precisely what is contained in the amendments carried out to the Act by the legislatures of Karnataka, Andhra Pradesh, Maharashtra and Tamil Nadu. However, in the bill passed by the Parliament we do not find the said provision. Rightly the said provision did not find favour with the representatives of the people and is deleted from the original bill even before it is presented to the Parliament. Therefore, the intention of the Parliament is clearly manifest from this Act. Secondly, the marriage, has no relevance to the succession or inheritance of the property. When a male Hindu marries, his right to succeed to a property or inherit a property is in no way affected by the act of marriage. However, in the case of a daughter in a Hindu Family, a distinction was sought to be made. After her marriage as she ceased to be a member of the Hindu Undivided Family and becomes a member of the Hindu Undivided Family of her husband, she was denied the right in the undivided family of her father. If she did not marry, her right was intact. The marriage had the effect of denuding her right to property in the family by birth. It stands to no reason. Therefore, the Parliament consciously has not used the word 'married daughter' in the entire Section as the case in the earlier State Amendment where they added an explanation, to exclude the married daughter. It is yet another indication and manifestation of legislative intent that they did not make any distinction between a married daughter and an unmarried daughter in respect to their rights to the properties of her father who is a coparcener in a Hindu Undivided Family governed by Mitakshara Law. It is settled law that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also what has not been said. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute. Therefore, we cannot import by an interpretive process the word 'married daughters' in any form and in any context to defeat her rights conferred under amended Section 6, when the legislative intention is expressed clearly and unambiguously without leaving any scope for interpretation. Thirdly, the language employed and the declaration made in Section 6 makes the legislative intent explicit and clear, i.e., the daughter of a coparcener shall by birth become a coparcenar in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have it if she had been a son. It means whatever right the son possesses in a coparcenary property is sought to be conferred on the daughter. The son would not lose his right in a coparcenary property because of his marriage. It is that right which is conferred on the daughter and, therefore, when by birth son acquires an interest in coparcenary property and retains the same, notwithstanding his marriage, when the daughter is also conferred the same right, it means she acquires a right by birth in the coparcenary property and she continues to hold the said right notwithstanding her marriage. The daughter's marriage will not put an end to the right of the daughter to a coparcenary property which she acquired by birth. If this is not the interpretation to be given to those words, then the Section would be violative of Section 14 of the Constitution which declares that there cannot be any discrimination between person and person on the basis of s*x. There cannot be a distinction between a son and a daughter under the constitutional scheme. Further, any other interpretation would mean there will be a further discrimination between a married daughter and an unmarried daughter, which is again opposed to the equality clause found in Article 14 of the Constitution. Then the whole object of bringing about this amendment, by substituting the provision in the existing Act and declaring that the daughter would get a right by birth in the same manner as son, would be defeated, if any interpretation is to be placed making a distinction between a married daughter and an unmarried daughter or a married son and a married daughter.

That is not the legislative intent and purpose. On the contrary, when such an attempt was made by the State Legislatures and the interpretation placed on the aforesaid provision resulted in heart burning and also contrary to the constitutional mandate contained in Article 14 of the Constitution, the Parliament taking note of these deficiencies and restrictions on the right of a married daughter advisedly has framed this provision putting an end to any such controversies and conferring the benefit of the amendment on the married daughters also.

Therefore, when the Parliamentary legislation which was subsequent in the Karnataka Amendment conferred the status of a coparcenar on the daughter of a coparcenar and gave right by birth in the coparcenary property and did not exclude the married daughters from such status and right expressly or by necessary implication, the Central Act to that extent is repugnant to the State law. Similarly, the word partition used in the State Law is too wide and the Central law defines the word partition and giving it a narrow meaning for the purpose of Section 6. Again the said definition runs repugnant to the State law. As the amended law is passed by the Parliament it prevails over the State law and the law passed by the State stands impliedly repealed to the extent of repugnancy. As such, the married daughter cannot be deprived of her right to a share in the coparcenary property by birth. With the passing of the Amendment Act Section 6A(d) stands repealed. Married daughter is entitled to equal share with the son in the coparcenary properties.

Therefore, a married daughter is also a coparcener and is entitled to equal share with the son in the coparcenary properties and her marriage in no way affects her right to equal share in the coparcenary property. Even after marriage she continues to have the same right which she had before marriage, as her right to coparcenary property flows from her birth as that of the son. To find out what is the right of a daughter in a coparcenary property, find out what is the right of the son. Whatever rights the son has in the coparcenary property, by virtue of the amendment the daughter also has such right. That is the object behind the legislation i.e., to achieve equality in the right of inheritance.

Therefore, it is clear that if on the date, i.e., 20th December, 2004, there is no partition effected by decree of the court thereby meaning a final decree for partition has not reached finality, then, the daughter of a coparcener is entitled to equal share in the coparcenary property as that of a son and Section 6 is applicable to such property. The legislative intention is clear. They wanted to give the benefit of this section to a daughter. Such a right, they did not wanted it to be defeated by mere plea of partition as well understood under Hindu law or merely because a suit for partition is filed or a decree for partition has already been passed by a trial Court. On those grounds they did not want to deny the daughter her legitimate share in the coparcenary property which ought to have been granted to her on the day the Act came into force namely 17th June 1956.

However, the recent Supreme Court Judgement unequivocally clinched that no right conferred to women over the ancestral property if the father died before 2005. But it shall not deprive her right to claim over the father self-acquired property if he died intestate.