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QUESTIONS & ANSWERS

Rights of married Hindu women after the Amendment Act, 2005

QUESTION: Please refer to the answer on the succession of women under the Hindu law in The Hindu dated April 11, 2011. Your answer as regards the rights of married women, who did not have the right to succession to the same extent as their unmarried sister consequent on the State Amendment Act needs some explanation. Your attention is invited to the decision of the Madras High Court in Parameswari@ Gnanasakthi v Raja Ratinam (2010) (5) CTC 51. Some more clarification as to whether the Amendment Act, 2005 enlarges the rights of married women from what they did not have as on date of State enactment would appear to be necessary in the light of this decision.

ANSWER: Succession is occasioned for properties of Hindu Undivided Families when there is a partition in the family or when a male coparcener dies leaving daughters. If such event had occurred after March 25, 1989, in Tamil Nadu, but before December 20, 2004, the benefit of enlargement of right will not be available for those who were married as on March 25, 1989, since the State law would be the ruling law on the date of succession.

The relevant date in Andhra Pradesh is September 5, 1985, Karnataka is July 30, 1994, Maharashtra is June 22, 1994 and similar date in some other States. If no succession had taken place till December 25, 2004, the central amendment will have to be given effect, since there had been no occasion for application of State law, where there had been no partition or death of a coparcener before this date so that married daughter would also count for a share in the event of further partition or death on or after December 25, 2004.

The above inference is drawn from the general principle that in matters of concurrent jurisdiction as in succession law, central law will prevail over the State law as decided in Ameera Nissa v Mahboob AIR 1953 SC 91.

Where a fair reconciliation is possible, such a view will be adopted as decided in State of Bombay v F.N. Balsara AIR 1951 SC 380.

As regards the decision of the Madras High Court in Parameswari @ Gnanasakthi v Raja Ratinam and Others (2010) (5) CTC 51, the case related to a daughter married before March 25, 1989, laying a claim to half share as against one-fourth share, which was conceded as her share of her father's share on his death prior to the central amendment. It was decided that the claimant was married before the State Amendment Act.

On the death of the father, Kalyanasabesa Deekshidhar, the claimant got her half share of her father's share in the joint family, which consisted of him and her brother. The father died well before 2004. In fact, three-fourths interest (aggregate of half share on partition and further one-fourth share being half share of father's share) of the son was also sold to a third party, who was also impleaded in the suit in 1999 itself before the amendment in 2004, which is not retrospective as observed by the High Court.

The view expressed, hereinbefore, is in conformity with this decision. It is only where no succession has taken place between March 25, 1989, and December 25, 2004, both married and unmarried daughters were on a par till the date of succession on or after December 25, 2004, so that the married daughter's share would get enlarged because of the central amendment and not in a case where there is succession during the interregnum between the State and Central amendments.

S. RAJARATNAM

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