After the enactment of an Act, it mainly operates in two ways – Prospectively or Retrospectively. However, there is a third type of operation known as the “Retroactive” operation of law. On the basis of this retroactive operation, the Hon’ble Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma[1] held that regardless of the fact that the birth of a daughter took place before the 2005 Amendment of Hindu Succession Act (hereinafter referred to as HSA), she will be considered as a coparcener like a son and it is not necessary that her father is alive on 9.09.2005 to confer the status of a coparcener upon her.
Prospective operation of a statute means that the application of the Act will take place after the date of commencement of such Act. If an Act creates certain rights and duties in a person, then as per the prospective operation, such rights and duties will be created after the commencement or enforcement of such Act. Such types of Acts have a nexus with only the future events and they ignore the past. For example, Penal Statutes are prospective in nature to be in line with the spirit of the basic structure of the Constitution as manifested in Article 20. For instance, if ‘A’ commits an act which is not a criminal offence in the present, and if after a year such act becomes a crime through a law then ‘A’ will not be punished for such crime because when he committed the act it was not an offence. With this explanation, if we look at Section 6 of HSA – if the amendment of 2005 had a prospective nature then daughters who were born before 9.09.2005 would have not been conferred the status of a Coparcener, and it would have been applicable to only those daughters who were born after 9.09.2005 as the Amendment Act came into force on 9.09.2005.
The retrospective nature of a statute means that the applicability of the Act will also take place before the date of commencement of such Act. If an Act creates any rights and liabilities in a person, then as per the retrospective operation of an Act, such rights and liabilities can be enforced in the present based on a past event. Such Acts completely accept the past and have the ability to change the past. If Section 6 of HSA was made retrospective in operation after the amendment of 2005 then it would mean that the daughters would be Coparceners by birth and could exercise their right as a Coparcener by birth. Moreover, if a partition had taken place before 20.12.2004 and no share was given to the daughter, then the daughter could reopen such partition. However, the wordings of the Proviso to Section 6(1) are – “Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20th day of December 2004.” – which means a partition before 20.12.2004 will not be affected by the newly created rights in the daughter, and hence we can say that the operation of the law, in this case, is not retrospective in nature.
Retroactive operation of a statute is a mixed category wherein we are neither ignoring the past nor resurrecting the past completely, rather we are merely recognizing the past to decide the future. The operation of such a statute is not done retrospectively rather it is done in the future. If an Act provides certain rights and liabilities then with respect to a retroactive operation, upon acknowledging an event in the past i.e. before the commencement of such statute, such rights and liabilities can be enforced after the commencement of the Act. In the case of Section 6 of HSA, it provides that the daughter of a coparcener will be a coparcener by birth just like a son, but daughters can exercise the right of a coparcener only after 9.09.2005. Here, since daughters are considered as a coparcener by birth so the fact that a daughter is a coparcener does not depend upon the fact that whether her father was alive on 9.09.2005 or not. For instance, if the father dies in 2001, and till date, there has been no partition of the ancestral property then a daughter in today’s date can claim partition of such property. This means, the Amendment Act of 2005 is recognising a right in past (before 9.09.2005) i.e. the right of a daughter by birth and is providing her with a right in the future (after 9.09.2005) i.e. right to claim partition. On the same reasoning, the Supreme Court in Vineeta Sharma case said that Section 6 of HSA is based on the retroactive operation.
[1] (2020) 9 SCC 1
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