Flagging what it described as an “inadvertent gap” under the 2005 law, the high court said the amended law, while intended to strengthen the rights of daughters in ancestral property, fails to clearly spell out the position of widows and mothers, both explicitly protected under the original 1956 law.
A bench of justices R Devdas and B Muralidhara Pai said that the problem lies in the drafting of the amended Section 6 of the Hindu Succession Act. The 2005 amendment was meant to give daughters equal rights as sons in joint family (coparcenary) property. But in doing so, the court noted, the amendment dropped any express reference to other Class I heirs, such as widows and mothers.
Under the unamended Section 6, the law was clearer. At the stage of a notional partition -- an assumed division of property to calculate shares -- the widow and mother were specifically recognised and guaranteed a share. The amended provision, however, is silent on this point.
This silence, the high court said in a judgment earlier this month, has left “room for confusion” on a plain reading of the law. While Parliament never intended to reduce or take away the inheritance rights of widows and mothers, the absence of an explicit mention now risks obscuring those rights, particularly in property disputes, it noted.
“It is by sheer inadvertence that the other Class I heirs, such as widow, mother, widow of a predeceased son, etc., who find place in Class I of the Schedule and whose rights flowed clearly under the unamended Section 6, have been missed out in the amended provision,” the bench said.
“We therefore feel it is the bounden duty of this Court to draw the attention of the lawmakers,” it added, suggesting that a fresh drafting of the provision, specifically referring to Class I heirs, may be necessary to remove ambiguity and protect widows and mothers from uncertainty.
The observations came while the court was dealing with a long-running family dispute over ancestral property.
The properties originally belonged to one Mudukanagouda Goudra, who died in 2008. Three siblings approached the courts claiming that Goudra was their father and that their mother was his second wife. They sought a declaration that they were co-owners of the ancestral property and asked the court to restrain Goudra’s first wife and her brother from interfering with it.
A civil court ruled that the first wife was the only legally wedded spouse and held that the three siblings, being children born from a void marriage, could not claim equal rights in the ancestral property. The siblings then challenged the ruling before the high court.
The high court partly allowed the appeals. While it upheld the finding that the first wife was Goudra’s lawful spouse, it also held that the three children born from the second relationship were entitled to inherit his property as legitimate children under the Act.
Since the properties were ancestral, the court applied Section 6 and ordered a notional partition. It held that the widow was entitled to half the property in her own right, and that the remaining half, which represented Goudra’s share, must be divided equally between the widow and the three children.
It was while applying this provision that the court encountered the drafting gap.
“At this juncture, we feel it is our duty to bring to the notice of the concerned authorities that the amended Section 6 leaves room for confusion insofar as the rights of a Hindu widow and mother are concerned,” said the bench.
The bench directed the high court registry to forward a copy of the judgment to the Union ministry of law and parliamentary affairs for “further steps”, effectively inviting the government to fix the gap.