BA LLB 2018

Section E
Case Comment

Examining Prakash v Phulvati through Susan Okin’s Lens.

INTRODUCTION

“Inheritance is one of the key mechanisms through which social and economic structures are
reproduced over time, in society based upon private ownership.” 1 It essentially is a portrayal
of not just the cultural or social values but also the economic structure which is prevalent at
that time in the nation or the state in question. Inheritance in India rather than being
governed by a common law, is actually governed by the personal laws of each religion
thereby resulting in each individual being subject to his or her own personal laws. “The
inheritance of women in India is a matter related to socio- economic issues, based on culture
and religion rather than on the spirit of law and its implementation.”2 “Religious Personal
Laws are used as a mode of governance where their ambiguous status serves to legitimize the
continued denial by the state of gender equality to women in family law matters” 3 “Women’s
economic status and social security is influenced by her ownership and control over
immovable property.”4 The rights over property which were to be vested in women have
been quite varied over the time exactly like their position in the society. After the rise in the
feminist movement preaching the equality of sexes, there has been a rise in evolving the law
as per the equality and yet the patriarchal mid frame is still quite prevalent in the society.
Although there have been many changes in the law to equalize the gender discrimination
present yet the situation has not improved completely. The Hindu Succession Act is an
example of the same as it depicts a lot of discrepancies with regard to the women and there is
no mention of the non-conforming or the third gender at all. The amendment of 2005 brought
about many changes to equalize the rights, especially for women. The newly amended
1
Finch, Janet, and Lynn Hayes. 1996. "Gender, Inheritance And Women As Testators". In Gender Relations In
Private And Public, 121-137. London: Palgrave Macmillan.
2
Khan, Sona. "Inheritance of Indian Women: A Perspective." India International Centre Quarterly 27, no. 2
(2000): 139-54. Accessed May 24, 2020. www.jstor.org/stable/23005497.
3
Parashar, Archana. 2013. "Religious Personal Laws As Non-State Laws: Implications For Gender
Justice". The Journal Of Legal Pluralism And Unofficial Law 45 (1): 5-23.
4
Misbra, Archana. "VICISSITUDES OF WOMEN'S INHERITANCE RIGHT—ENGLAND, CANADA AND
INDIA AT THE DAWN OF 21ST CENTURY." Journal of the Indian Law Institute 58, no. 4 (2016): 481-508.
Accessed May 26, 2020. doi:10.2307/45163083.
Section 6 recognized the right of daughters as coparceners in the ancestral property and
brought them at par with their male counterparts, the sons. The aim of this paper is to explore
one such case which highlights the gender discrimination prevalent in the Hindu Succession
Law, 2005- Prakash v Phulvati5 where despite the evolution of law the daughter’s right as a
coparcenary was questioned and then denied. Furthermore, this paper shall analyze the case
in relation to the idealogy of Susan Moller Okin and her theory regarding ‘justice within the
family’.

FACTS

The plaintiff, Phulavati had filed a petition in Belgaum in 2013 for the partition of the family
property claiming that ‘1/7th’ of the total share should be given to her from two properties
belonging to her family and 1/28th of the share from one of the remaining properties. These
properties were inherited by her father from his adoptive mother but the father passed away
in 1988. The defendants claimed that the plaintiff would not have any right in the
coparcenary property inherited by the father but only on the separate property acquired by
him. This suit was initiated in the year 1992. The amendment of 2005, for the Hindu
Succession Act was brought during the pendency of the suit.

PROCEDURAL HISTORY

The trial court ruled that the plaintiff would have the share she sought from the separate
properties so acquired by the father but would not get any share from the ancestral property.
This was contested by the plaintiff in the High Court where the plaintiff contended that post
the 2005 amendment as she was decreed a coparcener, she would also have a right in the in
the ancestral or family property and must get equal shares as her brother since the
implementation of the act. The defendants presented an argument stating that only the non-
amended pre-2005, Sec. 6 of the Hindu Succession Act could be used here and the amended
section would not apply in this case. Prithviraj v Leelamma6 was used to prove their
argument which stated that if the father had died before the commencement of the 2005 act, a
daughter would not be considered as a coparcener. The High Court hence examined the issue
whether the plaintiff would fall under the ambit of Section 6 of the newly amended act (as per

5
Prakash v Phulavati. (2016) 2 SCC 36.
6
M. Prithviraj v Leelamma N. (2007) SCC OnLine Kar 553
2005) or not. The High Court answered this question as affirmative, using G. Sarkar v
Geetha7, and stated that the amended act brings under its ambit the partition deeds which
have been registered and acted upon by the 20th December, 2004. However, relying upon the
facts, the court insisted that the partition in the current case did not fall under the ambit of the
exception. Furthermore, the court relied on the purposive interpretation of the section and
ruled in favor of the plaintiff stating that the daughter shall be considered as a coparcener.
This ruling was challenged by the defendants claiming that the plaintiff’s father was not a
coparcener himself at the implementation of the amendment and his right in the property was
frozen on his death because of notional partition and hence, the partition cannot be changed.
The appeal was hence, brought to the Hon’ble Supreme Court.

ISSUES, REASONING AND JUDGEMENT BY THE SUPREME COURT

The main issue examined by the Supreme Court was whether a daughter whose father had
died before the commencement of the 2005 amendment act would still be considered as a
coparcener under the Hindu Succession Act. The retrospective action of the act was also
questioned by the court. The appellants presented arguemnets challenging that the act not
apply to any partition which was finalized before the date of implementation the amendment
in question. The respondents highlighted the purposive interpretation of the statute
contending that the act amendment was solely for the purpose of providing women a stand
equal to their male counterparts in the family partition hereby promoting gender equality over
the gender discrimination norm prevalent in our society. Furthermore, since there was no
registered deed in the partition which happened in this case, the act would apply in favor of
the plaintiff. A comparative analysis was hence, drawn between the post and pre-2005
Section 6 which clarified who were the coparceners set to inherit the ancestral or family
property.
The court relied on the literal interpretation of the statute and contended that the applicability
shall not differ from what the statute actually wanted to portray. There can be no
retrospective implementation of a statute of not stated otherwise. The decision given by the
High Court was overruled. There can be no legislation, even if brought for social change,
which can be used retrospectively unless there was a clear mention of such application.
Hence, the daughters would only be considered coparceners if their father was alive at the
time of the amendment of the act in question.
7
G. Sarkar v Geetha (2009) 6 SCC 99
 ANALYSIS

Susan Moller Okin was a well-known feminist who related the concept of feminism and
gender to the structures of the family as well as the cultural norms. Okin developed her own
idealogy and theory on the basis of the ‘Rawl’s theory of Justice’. Rawls in his theory has
suggested that, “justice or injustice of a practice depends upon whether or not people who
participate in it would propose it to one another for mutual acceptance from a position of
equal liberty.”8 Okin’s work was majorly based on “individual freedom and well-being and
its political framework of rights and constitutional protections against the abuse of power.” 9
The main definition of gender according to her was “the deeply entrenched
institutionalization of sexual difference.” 10 Gender signified discrimination and disparity for
her. Termed as a liberal feminist she examined justice in relation to gender and claimed that
to promote actual equality for the sexes, there must be equality in relation to justice ‘within
the family’ as well. Her work, Justice, Gender and Family 11 is based on the same. Her work
Okin called for the non-segregation of the public and private life and believed that the
institution of family needed a structural change for the equalizing of the sexes. “Justice
requires adoption of principles and policies that would facilitate the creation of a ‘genderless
family’ in which the responsibilities and burdens of parenting and married life would be
shared equally between male and female members of the family” 12 Our society has been
segregated into the gender roles from the very beginning where women were denied the same
rights as men as ‘the man’ was considered as the sole manager of the family because he
earned. These gender roles are based on assumptions, assumptions which actually lead to the
reformation of roles constantly. The assumptions often are related to the fact that “women do
not really need the money, since they have a husband to support them.” 13 These gender roles
were and are so stringent that women are denied their share of economic as well as social
8
Haksar, Vinit. "Rawls' Theory of Justice." Analysis 32, no. 5 (1972): 149-53. Accessed May 26, 2020.
doi:10.2307/3327761.
9
Ackerly, Brooke, Jane Mansbridge, Nancy Rosenblum, Molly Shanley, J. Ann Tickner, and Iris Marion
Young. "Susan Moller Okin." PS: Political Science and Politics 37, no. 4 (2004): 891-93. Accessed May 23,
2020. www.jstor.org/stable/4488930.
10
Okin, Susan Moller. 1989. Justice, Gender And The Family. New York: Basic Books.
11
Ibid.
12
Russell, J.S. "Okin's Rawlsian Feminism? Justice in the Family and Another Liberalism." Social Theory and
Practice 21, no. 3 (1995): 397-426. Accessed May 26, 2020. www.jstor.org/stable/23557194.

13
Card, Robert F. "Gender, Justice within the Family, and the Commitments of Rawlsian Liberalism." Public
Affairs Quarterly 15, no. 2 (2001): 155-71. Accessed May 23, 2020. www.jstor.org/stable/40441290.
rights due to being considered as the ‘other’ or the ‘submissive and weak gender’. Okin
argued for the breaking of such gender roles so as to create a more equal society. Culture is a
tool that covers the patriarchal institutions that govern the lives of each individuals and this
culture displays the need to evolve. The family, the culture must be restructured to remove
the deep-rooted patriarchal mindset prevalent in the society.

Susan Okin’s belief about the inequality within the family stands corrected even today.
Despite many changes the position of many women still stands below the equality standard.
Women are not respected within the family and are often considered as meek or submissive
and not even allowed to venture into the ‘public’. Personal laws have depicted the relations
within the family evolving over time. After a wave of feminism, many rights of the women
were actually awarded to them, thereby bringing a change in the personal laws as well.
Hindu Succession Act, has for the first time recognized the rights of a daughter in 2005,
displaying the disregard for a daughter in a family as well. The only role a daughter is
subjected to is that one day she will wed and become a part of someone else’s family. It took
a lot of years for the daughters to be recognized as part of two families rather than the gender
role she is subjected to. The discrimination against women has continued since the
codification of the personal laws and has been prevalent even before such implementation.
There have been countless cases highlighting the structure of the family and its impact on the
patriarchal mindset of the judiciary. Omprakash v Radhacharan14 is one case displaying the
same, where marriage as an institution was given precedence over the disregard of the wife
herself. A daughter mistreated by her husband’s family, thrown out on the streets was taken
in by her parents, who gave her an independent life of her own. On her sudden death, the
separate property earned by her eventually went to the relatives of the husband. This case
highlighted the family structure where marriage takes precedence and parents who actually
go against the notion of patriarchy and stand by their daughter are denied their rights all
because she is married and hence, belongs to her husband’s family. “The apex courts caution
of sympathies having no place in law is absolutely correct yet at the same time even elements
of inequity and injustice”15 must not be depicted by the law as well. Prakash v Phulvati16
displayed that a fatherless daughter only had one identity and that was belonging to her

14
Omprakash v Radhacharan (2009) 15 SCC 66
15
Saxena, Poonam Pradhan. "REINFORCING PATRIARCHAL DICTATES THROUGH JUDICIAL
MECHANISM: NEED TO REFORM LAW OF SUCCESSION TO HINDU FEMAINTESTATES." Journal of
the Indian Law Institute 51, no. 2 (2009): 221-36. Accessed May 26, 2020. www.jstor.org/stable/43953440.
16
Prakash v Phulavati. (2016) 2 SCC 36
husband, and hence, whatever rights she could have gotten if her father was alive would not
vest in her. The structural change is required in the family where each individual irrespective
of their gender shall be considered equal.

CONSTITUTIONAL MORALITY

“Constitutional Morality requires that all the citizens need to have a closer look at,
understand and imbibe the broad concepts of the Constitution which are based on the liberty,
equality and fraternity.”17 Constitutional Morality essentially is the understanding of the
constitution to develop a society using the values the constitution asks us to imbibe. It is
different from the public morality prevalent in the society. The Constitution of India
guarantees equality of all individuals under the Articles 14, 15 and 21. Unless and until there
is positive discrimination or a reasonable classification for the discrimination made under the
law, the law shall be considered as unconstitutional. Similarly, this judgement provides no
reasonable basis for the discrimination between a daughter and a son. There is no reason why
if a son was in the place of a daughter in his case, his right to inherit would have been
recognized despite his father being dead prior to the amendment. A daughters’ right was
curtailed on the notion that the law would not be applicable retrospectively and her father was
not a coparcener at the time of the 2005 amendment. However, the judgement could have
extended the scope of the amendment on the ongoing cases in relation to partition as well,
and could have also recognized the daughter’s right to inherit a property the same way, her
brother does. “Claim for partition being restricted from certain dates only for daughters is a
clear discrimination on the basis of sex, which goes against the rules of equality under the
constitution.”18 Moreover, the purposive interpretation of Section 6 could also have been
employed to reach the conclusion rather than the application of the golden rule. Hence, this
judgement should be considered against the notion of constitutional morality, because there is
unjust discrimination between a daughter and a son.

INCONSISTENCY IN LAW POST 2018

17
Navtej Singh Johar v Union of India (2018) 10 SCC 1
18
Misbra, Archana. "VICISSITUDES OF WOMEN'S INHERITANCE RIGHT—ENGLAND, CANADA AND
INDIA AT THE DAWN OF 21ST CENTURY." Journal of the Indian Law Institute 58, no. 4 (2016): 481-508.
Accessed May 26, 2020. doi:10.2307/45163083
In 2018, the Supreme Court analyzed the question in relation to a daughter being the
coparcenary in the ancestral property again, in the case of Dhanamma v Amar19. The case had
similar facts to the above case, where the father had died before the commencement of the
newly amended Hindu Succession Act, however, the contention was raised on the fact
whether a daughter born prior to the amendment be considered as a coparcenary in the
ancestral property or not. Analyzing Roscoe Pound’s theory, the court stated that the law is
never stagnate but must evolve with time, similarly the law regarding women inheritance has
evolved with time. Similarly, the court recognized that in this case, despite the partition being
filed in 2002, the shares would have been frozen when the law would have passed in 2005
and it should have been analyzed by the lower courts as well. The court hence allowed that
any daughter born before the amendment would also have a right to inherit as a coparcenary
post the 2005 amendment. This case is in complete contradiction of the Phulavati judgement
thereby displaying the need for the evolution of women’s rights and how the patriarchal
frame must be removed from the lens of all the institutions of the society. Furthermore, this
case has created a legal friction where on one hand daughters would be considered as
coparcenary even if born prior to 2005, but their right to inherit also stands challenged in case
of the death of their father prior to 2005. The court has not applied the rule presented in
Prakash v Phulavati in the current case despite the death of the father occurring before the
implementation of the amendment in 2005. The clarity from this legal friction can only be
provided by the hon’ble courts.

CONCLUSION

“It is imperative that legal scholars discharge their responsibility to create the space for
articulating what would constitute gender just laws for all women.” 20 It is imperative that the
patriarchal mindset is recognised and removed because each individual deserves the freedom
to live their life with equality and without suppression. Women should not be ‘permitted’ to
do something but must do whatever they ‘choose’. Equalising the structure within a family is
the first step to equalise the religious personal laws. Hindu Succession Act, needs to be
reformed so as to prevent the interpretation of the law in a discriminatory manner. Despite
providing ‘equality’ to the daughter, to the woman, there is still a lot of discrepancies in the

Dhanamma alias Suman Surpur v Amar (2018) 3 SCC 343

19

20
Parashar, Archana. 2013. "Religious Personal Laws As Non-State Laws: Implications For Gender
Justice". The Journal Of Legal Pluralism And Unofficial Law 45 (1): 5-23.
statute which is unjust. This law must evolve to equalise each individual, irrespective of their
gender so as to not just improve the ‘private’ but also the public sphere.