JAGRAN LAKECITY UNIVERSITY, BHOPAL

SCHOOL OF LAW

TOPIC OF THE ASSIGNMENT: DOCTRINE OF PIOUS OBLIGATION AND ITS COMPETENT

RESPONSIBILITY UPON THE DAUGHTERS.

SUBMITTED TO: SUBMITTED BY:

Ms. SAUMYA SHAJI SHUBHAM CHOUHAN
ASSISTANT PROFESSOR 2017BBLH021
SCHOOL OF LAW SCHOOL OF LAW
Abstract

Feminist movements have questioned ‘male-stream’ thinking in ways that have struck at
discriminatory status quo in politics, society as well as the economic sphere. This project is
connected with the legal dimensions of the changes in the economic sphere of those changes
and specifically in the area of women’s property rights. Such changes have not been easy and
have included debates that have challenged the very basis of feminism itself. The ‘gender
equality v. gender difference’ or ‘formal equality v. substantive equality’ debates in feminist
theory are examples of contentious issues that have struck at the attempts of the law to change
the legal status of women. For example, would merely giving daughters the same coparcenary
rights as her brothers take into account that at some level the needs of men and women may be
different, as the ‘difference’ side believes? Or would giving a widow the same quantum of
coparcenary property as her sons (formal equality) make her life any better than in the past
(substantive equality)?

In Family law especially dealing with Hindu customs and traditions explicitly followed in
Indian society have different angles managed in an alternate prospect of life, which through
societal and legal advancements picked up a jurisprudential degree and lawful requirement in
the earth of training. The far-reaching structure of legitimate authorizations adjusted numerous
parts of Hindu traditions intentionally or accidentally which help for a substantial advancement
in the general public, the legal executive which could confront every one of the obstacles
experienced by the general population through religious society transformed numerous
perspectives which expelled the one-sided and cruel condition. The schools which the Hindu
traditions finished their sources like discourses and processes Mitakshara and Dayabhaga
schools of thought which has a distinction of choice concerning property legacy and
progression, where Mitakshara school to a great extent denied women’s rights over the
property. Despite the fact that different reconstruction enabled ladies which were likewise good
for discouraged and separated class and the establishments and alterations made for their
improvement presented one-sided conditions over other. This examination bargains about such
idea " The Doctrine of Pious Obligation" which force risk upon children to repay their father’s
debts, this study talks about the change of this doctrinal practice from the Vedic to current
society which through another statement made women as beneficiaries for property legacy yet
left the duty to repay their father’s debts through devout commitment principle. In this way, it
is uncovered that by the ongoing changes which derecognized this precept through its review
impacts forced a one-sided circumstance among the men.
Keywords: Amendments, Biased, Dayabhaga, Deprived, Liability, Mitakshara, Pious
Obligation.

Introduction

Family Law speaking to a key bit of the life of the individual takes a firm to remain in the
overall population, India has a strange showcase of individual laws, owe their various and the
wound assortment of traditions and custom to the starting, where models and most of the
substantive law existed. The individual laws accept a basic part in speaking to the network of
the general population, the uniqueness of Indian family law stays basic for every one of the
general population in the nation and has a consistency in application. It covers an enormous
zone of neighborhood relations, for instance, marriage, wedding fixes, the genuineness of
youths, care, guardianship, gathering, intestate and testamentary movement, etc. which
motivation a sheer greater part over laws in India. India, a nation hundreds of years known for
its secularism has been rehearsing different religions which are acknowledged by every one of
the general population and pursued by various segments, to give these religions a legitimate
implementation diverse enactments and establishments have been detailed. In that idea, Hindu
religion which is only rehearsed in India which is notable for now is the right time old traditions
and customs got its acknowledgment post-Vedic period by legitimate requirement into "Hindu
Law". Differentiated laws managing marriage, legacy, separate, reception, progression, upkeep
and authority were additionally plainly managed in Hindu law, in this manner customarily
inferred Hindu law through its traditions, content, standards, and regulations developed into an
individual law which shapes the practices of one specific network. Gotten from the systems of
eminent individuals of Vedic age, Smiritis Vedic portrayal like Dharmasastra dependent on
conventional organizations and traditions moved toward becoming days of yore, increasing
lawful implementation changed into contemporary standard laws including both substantive
and procedural structures. (Venkata Subbarao 1979) Sources of law inferred two fundamental
schools of thought for their execution and utilization of laws, as old individuals underlined the
significance of the considerable number of parts of life the tenets and standards were ordered
into two schools Mitakshara and Dayabhaga, these schools of Hindu Law rose with the ascent
of the time of editorials and summaries which are one of the wellsprings of Hindu law. The
intensity of the old works offered to ascend to arranged standards of Hindu law which at first
was associated with the whole of India yet thusly it disconnected into two schools and some
sub-schools. These schools solely manage Hindu progression and legacy of property and about
the privilege and proprietorship, which this investigation attempts to talk about it from a
different dimension.

Objectives:

1. To discuss the various aspects of inheritance of debt by daughters under pious obligation.

2. To study the contemporary status of pious obligation doctrine with respect to daughter’s
liability.

Hypothesis:

H0: Indian daughters are not considered as duty bearers under pious obligation doctrine.

Ha: Indian daughters are considered as duty bearers under pious obligation doctrine.

Statement of problem:

Hindu Succession (Amendment Act), 2005 (Amendment Act) came into effect and daughters
in a joint Hindu family, governed by Mitakshara law, were granted statutory right in the
coparcenary property (being property not partitioned or alienated) of their fathers, but does not
hold daughters as duty bearers to pay the debts of father whereas leaving women aside made a
bias against son by imposing liability only upon them only.

Research methodology:

Research is based on secondary sources using books, articles, government gazettes, legislation,
documents on different authors opinion.
ANALYSIS OF MITAKSHARA AND DAYABHAGA SCHOOL

MITAKSHARA SCHOOL

The Mitakshara school of thought was by and large proposed by Vijnaneshwar which is the
last bit of the eleventh century, this amazingly broad critique work deals with every one of the
parts of Hindu law. The principles of Yajnavalkya contrasts different pieces of Hindu law in
lawful authorization, along these lines this school containing all the general and explicit parts
of Hindu convention was broadly acknowledged in all the piece of the country, yet exposed to
analysis like absence of clearness in understanding a similar bit of work consequently was
exposed to extra sub-divisions and thusly five sub-schools made in course of time. All the sub-
schools were as per the Mitakshara school of thought in brilliance, each sub-school under the
Mitakshara in a perfect world perceived the pro of explicit treatises and talks. Different change
emerged between the subdivisions of the Mitakshara which showed up as a result of the manner
in which they are deciphered and connected in course of time, these variances and contrasts
which emerged between the subdivisions of the Mitakshara related to choice and heritage have
now been cleaned up by the two present-day law institutions, Hindu Succession Act, 1956 and
the Hindu Adoption and Maintenance Act, 1956.

DAYABHAGA SCHOOL

Jimutavahana was the author of the Dayabhaga School of thought amid the twelfth hundreds
of years, bits of proof saw uncovered that he was a famous Judge and a Minister of a King of
Bengal. This school of thought by Jimutavahana had altogether extraordinary standards from
an alternate purpose of comprehension and was acknowledged by numerous such groups who
trusted the regulation, communicated precepts on the law of legacy and the joint family
framework were completely contradicted to some essential guidelines of the Mitakshara
School. Simply had a restricting component with of Mitakshara school of thought it was not
seen that this school of thought did not split away any type of the legitimate writings of the
main Smritikars. In presenting certain extreme developments in various occurrences of the joint
family and privileges of the individuals from such a family, Jimutavahana implied to put
together his hypotheses with respect to specific statutes of "Manu", along these lines the
speculations of this school demonstrates offer more to reason and stern rationale, than to
statutes or points of reference, and his way to deal with the majority of the disputable inquiries
is immediate and straightforward. In this manner, such praised treatise, the Dayabhaga, before
long picked up acknowledgment and acknowledgment from various analysts.

Springing from similar wellsprings of Hindu law the works and compositions of
Smritis as critiques deciphered and communicated two schools of contemplations Mitakshara
and Dayabhaga, these two schools pursued their very own regulations and standards which
gave bargains included with different angles and part of Hindu traditions and practice. Different
contrasts were seen between these two schools of thought as for legacy and coparcenary rights,
the connection was diverse in both the principle with respect to coparcenary rights 1 one gave
rights just to sin denying different individuals from the joint family, where other school
depended for the most part upon the correspondence condition.

MITAKSHARA AND DAYABHAGA: TWO SIDES OF A COIN

Mitakshara and Dayabhaga schools being the opposite sides of one coin varied in real parts of
Hindu custom and lawful conventions, with respect to coparcenary rights, inheritance,
survivorship, succession, and transfers which are the procedural parts of property standard.
Dharma Sastra shows an outstandingly calm disapproved of methodology and perceived both
the schools of thought as it was in the lines of Smritis Dharma Sastra attempts to shield the
interests of different regions of the overall population and here, the endeavor is to alter the
interests of the individual inside the family, and meanwhile to neutralize disintegrating of the
family as a social unit, and keep up a key separation from break of fiscally and commonsense
units of property. Since Hindu society has reliably been a male-driven culture, property benefits
of male people from the family were continually exceptional and were believed to be more
reasonable than relatives. These schools of thought which rose has a deciphered type of works
of Smiritikars which gave reasonable information about neighborhood traditions and practices
in India, which however varied in numerous parts of standards picked up its significance in the

1
Shah S. "Difference between Dayabhaga and Mitakshara in Hindu Law." DifferenceBetween.net. August 25,
2015, <http://www.differencebetween.net/miscellaneous/religion-miscellaneous/difference-between-dayabhaga-
and-mitakshara-in-hindu-law/>.
field of customary and lawful comprehension. Having the cornerstone in the conceptual
background of Hindu law both the school of thought equally prevailed.

SCHEME OF PROPERTY DIVISION

Property privileges and the aspect of the division had their own need and stand in the schools
of thought, the scheme of which contradicted each other principle of the doctrine. In Mitakshara
school of thought, the Sapinda relationship is of blood, and the privilege to Hindu joint family
property is by birth of a son instantly. The arrangement of devolution of property is by
survivorship. The offer of coparcener right in the joint family property isn't clear or
ascertainable, as their offers are fluctuating with births and passing overs. A woman would
never turn into a coparcener neither single or married or widower of an expired coparcener can
uphold a segment of her significant other's offer against his siblings. Whereas in Dayabhaga
School depends on the code Jimutavahana, Inheritance depends on the rule of other advantages
like pinda offerers, this school followed the principle in which the privilege to Hindu joint
family property isn't by birth however just on the demise of the father. The arrangement of
devolution of property is by legacy. The legitimate beneficiaries either son or daughters
(children) have the privilege after the death of the father. Every sibling has responsibility for
the positive division of the joint family property thus can exchange his offer and a widow had
also the privilege to prevail to spouse's share in the property as after the death of husband the
widow turns into a coparcener. This shows that while the applicability of the inheritance
principle is needed in modern law the Mitakshara school of thought having a contingent and a
conservative scheme of property division which de recognized women from coparcenary or
inheritance rights of them deprived their status in the Hindu joint family. These difficulties
about the property inheritance and succession prevailed until the modern concept for
contemporary society came into force which gave legal enforcement to Dayabhaga school
which had a simple scheme and recognized women as well as a coparcener.

PIOUS OBLIGATION DOCTRINE

A doctrine of minimum morality and a concept of the legal obligation of repayment of debt
was clearly dealt in Hindu customary laws which have its existence from the Vedic period.
Ancient Indian literature unique concept of Pious Obligation evolved as a legal right from a
moral obligation, thus the perusal of Vedic doctrines in Hindu law through modern
developments gained a legal codified recognition to Pious Obligation doctrine.

By virtue of Mitakshara school of thought son was deemed to fulfil the pious obligation
procedure applied for both spiritual and secular debts, including monetary debts are incurred
upon the son. Precept of Pious Obligation implies the ethical liability of children to pay off and
release their father’s debts and further non-payment of obligations is a wrongdoing and
furthermore a crime.2 This obligation or commitment of a child to reimburse the obligations of
the expired father is refreshed upon an exceptional doctrine, known as "The Doctrine of Pious
Obligation". Thus a Hindu beneficiary is at a liability to pay back the obligations regardless of
whether legitimately acquired or for an indecent or unlawful reason of the perished, out of the
benefits he has acquired from the expired. The commitment exists whether the children are
major or minor, or whether the father is alive or dead. The obligation exists notwithstanding
amid the father's lifetime and subsists inasmuch as the father is subject.

BASES OF PIOUS OBLIGATION IN ANCIENT INDIAN LITERATURE

Ancient Indian legal literature is unique in its approach as to the authority of morals which was
recognized even by the judiciary during the British Indian period when precedence to moral
obligations was given over legal rights. The pious obligation of the son is one such moral
obligation where precedence to moral obligation was given over legal rights. A perusal of
Vedic literature, the most ancient written record, makes one feel astonished as to how
conscientious and serious thought has been given to the concept of debt and its payment. “The
idea of the liability to pay off one’s debts were developed in India in the most ancient times”.
It has been said, “let us drive away the evil effects of bad dreams as we pay off debts”. The
evolution and development of the concept of runa and the importance attached to its paying
back is the basis of the modern doctrine of pious obligation of the son to pay the debt of his
father; P. V. Kane observes: It appears to me that this theory of spiritual debts being already in
the air, the same sanctity came gradually to be transferred to one’s promises to repay monetary
debts and carry out other secular engagements. The word runa had been applied both to
spiritual and secular debts. It is on account of this that the son was not only desired for repaying

2
Sidheshwar Mukherjee vs Bhubneshwar Prasad Narainsingh, 1953 AIR 487, 1954 SCR 177
the spiritual debt owed to one’s ancestors, but he was also expected to free his father (if the
father could not himself repay the monetary debt) from the liability he incurred to his creditor.

P.V. Kane’s view is perfectly in consonance with the philosophy of ancient Indian law codes,
popularly known as Dharmasastras. The ancient Indian literature is full of evidence of the
importance given to the discharge of liability to pay off debt from ancient times. According to
ancient Indian thought, one is born indebted; and is under an obligation to discharge the
liability.

Ancient Indian law codes which are the basis for Hindu law and custom deals about various
aspects, Dharmasastra which is considered as a treatise of Hindu law over "dharma‟ principle
forms as a radical for different patterns of living in Indian society. The Doctrine of Pious
Obligation has its root in Dharmashastras, in which a non-repayment may result in wrongdoing
which brings about sufferings in the next life. Consequently, the obligations must be paid off
in all conditions gave it was not to corrupt and unlawful purposes. Vrihaspati has stated, "If the
father is never again alive the obligation must be paid by his children. The father's obligation
must be paid as a matter of first importance and after that a man's own particular obligations”.
Son is deemed to pay debts even it is immoral or illegal, but the personal interest in the payment
of debts depends on the interest towards coparcenary rights.

AVYAVAHARIKA PROPERTY AND DEBT

By the shifting stance towards judicial orders and decisions being accepted as sources of Hindu
law, the son deemed to pay back had availed certain exceptions Avyavaharika debts 3 (illegal,
immoral debts) tainted with illegality does not deem son to repay the debts, thus this
commitment stretches out to Non-Avyavaharika (or vyavaharika) obligations only.
Avyavaharika obligation is one, which is taken for the illicit or corrupt purpose. E.g.: -
Gambling, Races and so forth. According to Hindu texts, the sons are not compellable to pay
debts incurred for: (i) losses at play, (ii) alcoholic drinks, (iii) promises without consideration,
(iv) promises made out of lust or under the influence of wrath; (v) suretyship or (vi) fines or

3
Sivakumar and Anr. vs V. Somasundaram and Ors. (1987) 1 MLJ 132
bribes. The word avyavaharika does not cover merely those debts which are illegal or immoral,
but also all debts which the Court regards as inequitable or unjust to make the son liable.

TRANSFER FROM VEDIC TO CONTEMPORARY PERIOD

Pious obligation doctrine in a modern perspective aimed at removing discriminations and

impartiality from the Hindu community. Feminist movements which struck the economic
sphere largely which transformed women as a working class in the society urged for revolution
in property rights, the consensus of opinion of various orders and decisions over equal
protection clause and the Shridhar (women’s property) over Vedic age through modern
legislation suffered a revolution or turnover of significant clauses in customary Hindu law.
Legally enforced property rights of women by Hindu Women’s Right to Property Act, 1937
enlightened the deprived rights of the women in older days a reformation which uplifted the
position of women in Hindu joint family.

The vast and a transparent approach over women’s rights of inheritance and succession gained
a wide welcoming in the modern society, with such reformation in personal laws an indirect
move over women empowerment was constituted and by removing customary and personal
laws a direct move was fruitfully attempted and uplifted women in the society. When pondering
over the legal enactments, the revision to Hindu Succession Act of 2005, enabled the women
to wind up as a coparcener like a male in familial property which was considered as a
noteworthy change established because of western impact. Under Old Law, the doctrine
(obligation to release the debts) arises after the death of the father but, according to the Modern
law the commitment emerges notwithstanding amid the existence time of the father. Further,
Under the Old Law, the child had a commitment to pay the obligations with interest. The
Grandchild was at risk for the primary sum only. The great-grandchild was not at risk unless
he had gotten the property from the ancestor, but according to the Modern Law all son, sons
are a liability to pay the obligations with intrigue.

ANALYTICAL DETERMINATION OF THE DOCTRINE

Though the property inheritance right was granted to the women who in the degree of wife,
daughter, sibling or an at the time of widowhood, the doctrine of Pious Obligation gained legal
enforcement encountering various difficulties. In codified legal environment various questions
raised with respect to leftover interests in the reformation process, with respect to coparcenary
rights of the women which granted them inheritance of father’s or the family property
encountered with a query about the pious obligation doctrine and its responsibility upon women
in repayment of debts which remains as an obligation only for sons. Tangible improvement in
the statutes of women which abolished biases in coparcenary rights was deemed to upheld all
the clauses of Hindu customs which had various transformations in the doctrines and principles
adopted, in the modern legality clause Hindu Succession Act, 1956 after amendment ensured
rights to daughters the same rights as that of sons in the process of inheritance has left the
inheritance of pious obligation doctrine, a process of repayment of debt. The repugnancy of the
legal jurisprudence in incorporating the pious obligation doctrine with the amending clause
later witnessed a biasedness with a son who is alone deemed for payback of debts. As per the
Section 6 of the Hindu Succession Act, 1956, after the amendment the daughters who gained
the same rights as the son and by this amendment the pious obligation has been deleted after
the amendment Act of 2005 but the liability to repay the debt of the deceased father before the
enactment remained working, therefore the rights of the creditors will be preserved if the debt
was taken before the commencement of this amendment. Analytically Pious Obligation should
be deemed that daughters should be a duty bearer in repayment of debts, therefore the codified
concepts of law regarding Hindu customs should pose responsibility upon daughters for
repayment of debt procured by father under pious obligation doctrine.

The constitution of India some argue provides a comprehensive framework for providing for
legislation that can bring tangible improvements in the status of women. However, it has been
argued that the interpretation of the constitution by the higher courts have vastly reduced its
efficacy by giving undue importance to so-called ‘religious personal laws’ which in the guise
of protecting religious minorities allows for judicially acknowledged discrimination of women.
A ‘secular constitution’ in a ‘religious society’ has not been able to rise to the challenges that
a dominant male hegemony has attempted to create by purporting to protect a higher value -
religion’. Consequently, an issue that is directed at reform of laws that discriminate against
gains political currency and becomes too emotive to touch, let alone reform. The Uniform Civil
Code which despite being mandated by the constitution is unlikely to get fructified, at least in
the near future, on account of such politicization.

The judiciary has not been able to innovate in the face of such hurdles for women’s rights. For
example, in an interpretation of the ‘Equal Protection Clause’ of the constitution, the difficulty
may be visible. The Supreme Court of the US will sometimes review discriminatory systems
on the basis of ‘active review’ (and hold the systems unconstitutional by looking at their
‘substance’ not their purported object) in the cases of vital matters of civil rights such as
women’s rights. In India however, the paradigm of reviewing discriminatory systems is termed
‘restrained review’ which assesses levels of formal equality (as opposed to a requirement of
substantive equality) thereby allowing several discriminatory systems to get through judicial
review.

Now to turn to the evolution of women’s property rights before the Hindu Woman’s Right to
Property Act, 1937. The concept of stridhan or ‘women’s property’ originated in the Vedic age
and undergone significant variation in various commentaries and after adjudication by British
courts. In general, the stridhana of a woman denotes a species of property over which she has
absolute control; and she forms the stock of descent in respect to such property. In other words,
such property devolves on her heirs, although the variations between different schools of Hindu
Law may not always provide for this.

The British courts recognized three types of stridhan the first being ‘gifts from kindred’ that is
from male relatives of her natal family. The second type consists of ‘property acquired in lieu
of maintenance’ and the third type consists of ‘property acquired by adverse possession’. The
share of a woman on the partition is not stridhana and she would not be its absolute owner.

The second type of women’s property is that where she has limited or qualified interest and
such property got fructified in the Hindu Women’s Right to Property Act, 1937 (discussed
below). Such ‘women’s estate had the primary feature of only providing for limited power of
disposal (usually only for legal necessity). Also, such estate was only for the benefit of the
widow in her lifetime and reverted to the heirs of the last full owner.

Thus this historical background allows for a full-fledged discussion of the ‘coparcenary rights’
of women right from the Hindu Women’s Right to Property Act, 1937 right down to the
recommendations of the Law Commission in 2000.

It will be noticed that reform in the area of property rights for women and daughters, in
particular, follow two broad approaches. The first being a reformation of the personal law as it
stands i.e. reform the hitherto discriminatory law that devolves property upon males by virtue
of birth and give women similar rights. This approach is liable to the general criticism that it
purports to retain customary-personal laws but tamper with their fundamental principles, which
is primarily directed towards giving only males property rights. The second approach is more
direct, removing all customary-personal laws, which are inherently discriminatory against
women on the ground that they cannot fruitfully be reformed. Both approaches have been
attempted in India with varied results and consequences for the rights of women.

The second more direct approach was attempted in Kerala in 1976 with the Kerala Joint Family
System (Abolition) Act, 1976 which followed the broad recommendations of the Hindu Law
Committee (Rau Committee) and abolished the right of birth under both Mitakshara and
Marumakattayam Law. The Act itself creates consequences that have proved to have both
positive and negative consequences for the rights of women.

Firstly, the Act has operation only in Kerala where the existence of matrilineal succession
systems such as the Marumakattayam Law also got abolished. While in general ‘right by birth’
as a principle has been discriminatory against women, in Kerala, for instance, this may not
have been the case and the legislation adversely affected women who were benefiting by a
‘right by birth’ principle in favor of women. Secondly, the Act is prospective in nature,
abolishing devolution of property by birth, after its enactment, thereby not benefiting women
who were previously denied property on account of this principle. Thirdly, the Act lays down
that members of the Mitakshara coparcenary will hold the ancestral property as tenants-in-
common the Act comes into operation as if a partition had taken place and each of them holding
it separately. The property rights of women may be defeated if the male coparceners dispose
the property by testament or by alienation and the act makes no effort to prevent such a manner
of defeating the property rights of the woman. Fourthly, the Act does not confer any rights to
daughters in existing coparcenary properties.

The second approach of reform was attempted by the Andhra Pradesh legislature in 1985 where
it attempted to reform the customary Hindu Law by making the Daughter a coparcener and
giving her the same rights as other (previously only male) coparceners. The Andhra Model has
been replicated in Tamil Nadu, Karnataka & Maharashtra. This model will be examined in
greater detail below.

and on its Fundamentals

As explained earlier the Acts make the daughter a full coparcener and this makes her a member
of her natal family and marriage to another family does not alter this position. In other words,
she is a member of two families, her natal family, and her husband’s family-- a position of law
hitherto unknown. The Supreme Court in the past has struck down definitions of ‘family’ that
are artificial because they don’t exist in actual practice or because they violate fundamental
rules of legal construction. In Kunhikoman v. State of Kerala 4 a definition of family that
included ‘husband, wife, unmarried children or such of them as they exist’ was struck down as
unconstitutional and artificial as they did not exist in actual practice nor in any established
system of law. It remains to be seen if such a modification to the meaning of the ‘family’ that
the amendments have in fact been affected will be sustained if challenged.

The woman as a Karta within traditional Hindu law has not been accepted in practice nor in
theories of Hindu Law. Such an exclusion is based on the logic that ‘only a coparcener can be
a Karta’ since women cannot be a coparcener they also cannot be a karta and such logic is
supported by the opinion of the Supreme Court. The amendments, however, attempt to create
exactly the contrary position making a daughter a karta and thereby technically allowing her to
become a karta of the joint family. As Prof. Sivaramayya has argued this fiction of law could
lead to practical difficulties if a coparcener leaves a daughter from a first marriage and a wife
and children from a second marriage. Potentially the first daughter could claim kartaship over
the second wife’s family (as well as manage the affairs of their family) despite being a member
of another family (after marriage)-practically a very difficult situation.

The doctrine of pious obligation has posed difficulties in the context of codified law and more
so in the context of women. It has been held that the ‘moral obligation’ to pay off the debts of
deceased relatives that arises in the case of male coparceners does not apply to the widow. In
Keshav Nandan Sahay v. Bank of Bihar 5, the court held that the sons were liable for pre-
partition debts incurred by their deceased father with respect to some bank loans while the
widow was not. The court felt that on the partition between the coparcener and his sons the
widow is allotted a share in her own right and not as a mere representative of her husband. This
position of her differentiates her from her sons as regards their pious obligations.

In the High Court of Karnataka (where the new amendments operate) took the same view,
albeit before the enactment of the amendments. In Padminibai v. Arvind Purandhar Murabatte6,
the court felt that because a wife not being a person entitled to a share in the Mitakshara
coparcenary by birth is not bound by the doctrine of pious obligation.

Now applying this reasoning of the Karnataka High Court to a post-amendment scenario-- will
the daughter be liable for pious obligation? Following the reasoning of the Karnataka High

4
Karimbil Kunhikoman vs State of Kerala, 1962 AIR 723, 1962 SCR Supl. (1) 829
5
Keshav Nandan Sahay And Ors. vs The Bank Of Behar, AIR 1977 Pat 185, 1977 (25) BLJR 543
6
Padminibai vs Arvind Purandhar Murabatte, AIR 1989 Kant 120, ILR 1987 KAR 3583, 1988 (1) KarLJ 291
Court, the wife was excluded from pious obligation simply because she did not have a right by
birth in the coparcenary. Therefore, if a daughter acquires a share in the Mitakshara
coparcenary by birth it must follow that she will now be liable. This will have to be adjudicated
upon by the courts to achieve certainty in the matter.

Other aspects of Mitakshara Law such as reunion also pose problems because firstly they are
regulated by uncodified Hindu Law and secondly a reunion is only possible between father-
sons, brothers, nephews-paternal uncles totally excluding women. Again as argued above, if
the daughter (or sister or niece) becomes eligible to participate in reunion as coparceners then
it will amount to tampering with uncodified law something, which the amendment to a partial
code cannot effect.

Questionable Distinctions in the Amendments

In S.29-A of the Andhra Act the daughter becomes a coparcener “by birth” therefore does this
section apply to only natural born daughters or also to daughters by adoption? Should “birth”
be strictly interpreted so as to exclude the latter? The second questionable distinction is found
in S.29-A (iv) where the coparcenary rights are said to accrue only to daughters who remained
unmarried at the time of enactment of the amendment. Should marital status be taken as a
legitimate basis of classification that could exclude some daughters from the rights that the
amendments create for other ‘classes’ of daughters?

In Indian constitutional law, exceptions to the “Equality and Equal Protection Clause (Art.14)”
are analyzed with the Doctrine of Reasonable Classification. The doctrine which is a juristic
tool allows for certain exceptions to a strict rule of equality if two conditions are satisfied
namely (a) the classes created have been based on some intelligible differentia (b) the
classification bears a rational nexus to the object of the classification.

The distinction relating to “birth” will be considered first. It seems that there is an intelligible
differentia between a ‘natural born’ and ‘adopted’ daughter with the reading of the section
providing that “birth” might have to be strictly construed. However, it is on the second
condition of rational nexus that the distinction seems untenable. From the reading of the
preamble to the Andhra Act, it is clear that it was enacted because “…exclusion of the daughter
from participation in coparcenary ownership by reason of her sex…” is contrary to Art.14
(equality clause) of the constitution. The emphasis seems to be directed at removing
discrimination ‘by reason of sex’. Does differentiation by “birth” have a rational nexus with
the object of the Act, which is removing discrimination on the basis of sex? It is humbly
submitted that the answer is no.

Further support for this argument can be drawn from S.12 of the Hindu Adoption and
Maintenance Act, 1956 which serves for the adoptive child (from the date of adoption) all legal
links with his natal family and associates him with only his adopted family. However, Prof.
Sivaramayya disagrees arguing that the section does not intend to give coparcenary rights to
an adoptive daughter because of the emphasis on “by birth”. Without going into the substance
of his argument, it may be questioned on the count that one must not assume that the opinion
of the legislature must in all cases be given effect if it results in some absurdity or clear
injustice. Judicial review of a number legislative acts has proceeded on the ground of ensuring
some higher values, either intended by the legislature (but not reflected in the wording of the
enactment itself) or contrary to the opinion of the legislature itself.

The second questionable distinction arises with the use of marital status to exclude daughters
married before the commencement of the Act from its operation. It has been argued the reason
for this distinction might have been the sociological fact that dowry is given to the daughter at
the time of marriage and this would constitute her share. This justification for the
differentiation, it is submitted, would be against public policy especially when there are a
number of legal prohibitions against the custom of dowry.

While this distinction in the context of the amendment has not been adjudicated, in other fact
situations, marital status as a ground for differentiation has been held unconstitutional. In Savita
Samvedi v. Union of India restrictions were placed on the right of a railway employee to
nominate a married daughter for certain benefits that the railway was giving to its employees.
A married daughter under the railway rules was eligible only if there was no son or the son was
not in a position to take care of his parents. The court held that this distinction was
unconstitutional because it suffered from the twin vices of gender discrimination between
sons/daughters as well as between daughters inter se (on the ground of marriage). Thus the
trend of the Apex court seems to go against accepting a differentiation where the ground is
marital status. The opinion of the Supreme Court will reinforce the submission that ‘marital
status’ as a ground of differentiation cannot have a rational nexus to the object of granting
coparcenary rights to daughters in general.

The history of the pious obligation of a daughter can be laid back to 1924 when the Privy
Council first heard the case of such type of obligation of daughters towards their deceased
father. In the case of Pondicherry Kokilambal vs Pondicherry Sundarammal and Ors7. on
25/7/1924 it was observed by the Privy Council:

“The entire law of the joint family, including right by birth,' has to be applied, the only
difference being that daughter took the place of sons and are entitled to such rights, as the sons
would have in a joint family. If this view is correct the position will be that the plaintiff would
have all the rights and liabilities of sons in a joint family. If you concede the right by birth and
apply the law of the ordinary Mitakshara joint family, you must also concede pious obligation
of the daughter to discharge her mother's debts”.

From the cases reported in Chalakonda Alasani v. Chalakonda Ratnachalam 8, Kamakshi v.

Nagarathnam, Boologam v. Swornam, Venku v. Mahalinga and Muttukannu v. Poramasami,
that there can be a coparcenary of dancing girls, with rights of survivorship. There is however
no case which goes to the length of saying that daughters of dancing girls acquire by birth an
interest in the ancestral property; but Mr. Guruswami Chetty contends that once you grant a
co-parcenary, right by birth is a necessary corollary and that there can be no co-parcenary
without-right by birth-acquired by co-parceners Mr. Radhakrishnayya relies upon Niras Purbe
v. Tetri Pasin and Sant Singh v. Lachhmi to show that in such cases you have to apply the law
of usage and that the daughters inherit the property absolutely as stridhanam.

In another case of 1984 Income-Tax Officer Vs K. Krishnamachari on 18/8/1984 it was held

that the daughters have no pious obligation to repay the debt of her father. In this case the
deceased, A. Radhakrishnamurthy, died leaving behind two daughters, some properties as well
as debts. Admittedly, he died intestate. Immediately after his death, his daughters being his
Class I heirs inherited his properties with the obligation to discharge the debts due from him.
Unlike in the case of the sons, the daughters have no pious obligation to pay the debts of their
father. The necessary corollary of this position is that the daughters would be liable to discharge
the debts of the father only to the extent of the value of the assets inherited by them through

7
Pondicherry Kokilambal vs Pondicherry Sundarammal and Ors., AIR 1925 Mad 902
8
(1918) 20 BOMLR 566
their father. There is no question of any executor administering the estate of the deceased. The
question of an executor administering the estate of the deceased person would arise only if such
an executor was appointed by the terms of a will left behind by the deceased by which the
testator ordained the executor to take over his properties, administer them and to discharge the
debts due from him.

As per Section 6 of the Hindu Succession Act, 1956, after the amendment the daughters shall
have the same rights and liabilities as if she would have been a son. Therefore, the pious
obligation has been deleted after the amendment Act of 2005 but the liability to pay the debt
of the deceased father will be the same upon daughters as they would be on sons before the
commencement of the 2005 amendment Act, therefore the rights of the creditors will be
preserved if the debt was taken before the commencement of this amendment.

But at the same time now the creditors cannot move against any heirs of the deceased father if
the father died without paying back the debts of the creditors. But if however, such heir has
expressly to bind himself to fulfill the obligation, the provision will become redundant and
inoperative. Since the commencement of this amendment the creditor's rights are preserved
against any heir born after the said Act was passed.

If the daughter expressly agrees to give back the debt of her father, then she can do it as per the
guidelines under the amended section 6 of Hindu Succession Act.

CONCLUSION

Though the ancient customary practice was directly biased upon women’s rights in
respect with a property right, the later modern theories reformed the biasedness through
reformation and reconstruction of the traditional practices through judicial decisions and
orders. With regard to inheritance of property, the rights were granted to women also through
amending process of the Hindu laws which also after the amendment the law directly
derecognized proceeds against pious obligation doctrine which expressly does not hold
daughters as duty bearers. But having a retrospective effect upon the amendment to curb the
loss of the creditors made sons liability to pay back the debts positive, which by leaving women
aside made a bias against son by imposing liability only upon them. Thus this paper
recommends that as the succession and inheritance are ensured to women, same as that pious
obligation should be expressly applied to them rather in an implied manner leaving out their
responsibility as the pious obligation doctrine depends on the interest over coparcenary right.

BIBLIOGRAPHY

 Agrawal, K.B., 2010. Family Law in India, Kluwer Law International.

 Anon, 2013a. Difference between the Ancient Doctrine of Pious
Obligation and the Modern Doctrine. World’s Largest Collection of
Essays! Published by Experts. Available at:
http://www.shareyouressays.com/knowledge/difference-between-the-
ancient-doctrine-ofpious-obligation-and-the-modern-doctrine/117380
 Anon, 2013b. Pious Obligation of a Hindu Son to pay his Father’s Debts.
World’s Largest Collection of Essays! Published by Experts. Available
at: http://www.shareyouressays.com/knowledge/pious-obligation-of-a-
hindu-son-to-pay-hisfathers-debts/117184
 https://www.academia.edu/24128027/Pious_obligation_of_Daughters_
the_Modern_Perspective
 https://blog.ipleaders.in/what-happens-when-a-person-cannot-pay-his-
debts-and-becomes-bankrupt-or-insolvent/
 http://www.legalservicesindia.com/article/696/Pious-obligation-of-
Daughters-the-Modern-Perspective.html
 http://www.legalserviceindia.com/articles/sons_p.htm
 http://www.lawcommissionofindia.nic.in/kerala.htm