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The
United Nation's Report in 1980 presented that:
"Women constitute half the world's
population, perform nearly two-thirds of its hours, receive
one-tenth of the world's income and less than one ?hundredth of
the property."
Since time immemorial the
framing of all laws have been exclusively for the benefit of man,
and woman has been treated as subservient, and dependent on male
support. The right to property is important for the freedom and
development of a human being. Prior to the Hindu Succession Act,
1956 shastric and customary laws that varied from region to region
governed Hindus and sometimes it varied in the same region on a
caste basis resulting in diversity in the law. Consequently in
matters of succession also, there were different schools, like
Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay,
Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and
Mitakshara in other parts of India with slight variations The
multiplicity of succession laws in India, diverse in their nature,
owing to their varied origin made the property laws even mere
complex. Earlier, woman in a joint Hindu family, consisting both
of man and woman, had a right to sustenance, but the control and
ownership of property did not vest in her. In a patrilineal
system, like the Mitakshara school of Hindu law, a woman, was not
given a birth right in the family property like a son.
Discrimination against women
is so pervasive that it sometimes surfaces on a bare perusal of
the law made by the legislature itself. This is particularly so in
relation to laws governing the inheritance/succession of property
amongst the members of a Joint Hindu family. It seems that this
discrimination is so deep and systematic that it has placed women
at the receiving end. Recognizing this the Law Commission [1] in
pursuance of its terms of reference, which, inter alia, oblige and
empower it to make recommendations for the removal of anomalies,
ambiguities and inequalities in the law, they decided to undertake
a study of certain provisions regarding the property rights of
Hindu women under the Hindu Succession Act, 1956.
Background
A woman in a joint Hindu family, consisting both of man and woman,
had a right to sustenance, but the control and ownership of
property did not vest in her. In a patrilineal system, like the
Mitakshara school of Hindu law, a woman, was not given a birth
right in the family property like a son. Under the Mitakshara law,
on birth, the son acquires a right and interest in the family
property. According to this school, a son, grandson and a
greatgrandson constitute a class of coparcenars, based on birth in
the family. No female is a member of the coparcenary in Mitakshara
law. Under the Mitakshara system, joint family property devolves
by survivorship within the coparcenary. This means that with every
birth or death of a male in the family, the share of every other
surviving male either gets diminished or enlarged. If a
coparcenary consists of a father and his two sons, each would own
one third of the property. If another son is born in the family,
automatically the share of each male is reduced to one fourth.
The Mitakshara law also
recognises inheritance by succession but only to the property
separately owned by an individual, male or female. Females are
included as heirs to this kind of property by Mitakshara law.
Before the Hindu Law of Inheritance (Amendment) Act 1929, the
Bengal, Benares and Mithila subschools of Mitakshara recognised
only five female relations as being entitled to inherit namely -
widow, daughter, mother, paternal grandmother, and paternal
great-grandmother [2]. The Madras sub-school recognised the
heritable capacity of a larger number of females heirs that is of
the son's daughter, daughter's daughter and the sister, as heirs
who are expressly named as heirs in Hindu Law of Inheritance
(Amendment) Act, 1929 [3]. The son's daughter and the daughter's
daughter ranked as bandhus in Bombay and Madras. The Bombay school
which is most liberal to women, recognised a number of other
female heirs, including a half sister, father's sister and women
married into the family such as stepmother, son's widow, brother's
widow and also many other females classified as bandhus.
The Dayabhaga school neither
accords a right by birth nor by survivorship though a joint family
and joint property is recognized. It lays down only one mode of
succession and the same rules of inheritance apply whether the
family is divided or undivided and whether the property is
ancestral or selfacquired. Neither sons nor daughters become
coparceners at birth nor do they have rights in the family
property during their father's life time. However, on his death,
they inherit as tenants-in-common. It is a notable feature of the
Dayabhaga School that the daughters also get equal shares along
with their brothers. Since this ownership arises only on the
extinction of the father's ownership none of them can compel the
father to partition the property in his lifetime and the latter is
free to give or sell the property without their consent.
Therefore, under the Dayabhaga law, succession rather than
survivorship is the rule. If one of the male heirs dies, his
heirs, including females such as his wife and daughter would
become members of the joint property, not in their own right, but
representing him. Since females could be coparceners, they could
also act as kartas, and manage the property on behalf of the other
members in the Dayabhaga School. However, during the British
regime, the country became politically and socially integrated,
but the British Government did not venture to interfere with the
personal laws of Hindus or of other communities. During this
period, however, social reform movements raised the issue of
amelioration of the woman's position in society.
The earliest legislation
bringing females into the scheme of inheritance is the Hindu Law
of Inheritance Act, 1929. This Act, conferred inheritance rights
on three female heirs, i.e., son's daughter, daughter's daughter
and sister (thereby creating a limited restriction on the rule of
survivorship). Another landmark legislation conferring ownership
rights on woman was the Hindu Women's Right to Property Act (XVIII
of) 1937.
This Act brought about
revolutionary changes in the Hindu Law of all schools, and brought
changes not only in the law of coparcenary but also in the law of
partition, alienation of property, inheritance and adoption. [4]
The Act of 1937 enabled the widow to succeed along with the son
and to take a share equal to that of the son. But, the widow did
not become a coparcener even though she possessed a right akin to
a coparcenary interest in the property and was a member of the
joint family. The widow was entitled only to a limited estate in
the property of the deceased with a right to claim partition [5].
A daughter had virtually no inheritance rights. Despite these
enactments having brought important changes in the law of
succession by conferring new rights of succession on certain
females, these were still found to be incoherent and defective in
many respects and gave rise to a number of anomalies and left
untouched the basic features of discrimination against women.
These enactments now stand repealed.
The framers of the Indian
Constitution took note of the adverse and discrimnatory position
of women in society and took special care to ensure that the State
took positive steps to give her equal status. Articles 14, 15(2)
and (3) and 16 of the Constitution of India, thus not only inhibit
discrimination against women but in appropriate circumstances
provide a free hand to the State to provide protective
discrimination in favour of women. These provisions are part of
the Fundamental Rights guaranteed by the Constitution. Part IV of
the Constitution contains the Directive Principles which are no
less fundamental in the governance of the State and inter alia
also provide that the State shall endeavor to ensure equality
between man and woman. Notwithstanding these constitutional
mandates/directives given more than fifty years ago, a woman is
still neglected in her own natal family as well as in the family
she marries into because of blatant disregard and unjustified
violation of these provisions by some of the personal laws. Pandit
Jawaharlal Nehru, the then Prime Minister of India expressed his
unequivocal commitment to carry out reforms to remove the
disparities and disabilities suffered by Hindu women. As a
consequence, despite the resistance of the orthodox section of the
Hindus, the Hindu Succession Act, 1956 was enacted and came into
force on 17th June, 1956. It applies to all the Hindus including
Buddhists, Jains and Sikhs. It lays down a uniform and
comprehensiye system of inheritance and applies to those governed
both by the Mitakshara and the Dayabahaga Schools and also to
those in South India governed by the the Murumakkattayam,
Aliyasantana, Nambudri and other systems of Hindu Law.
The
Hindu Succession Act, 1956 : - Gender Position Before 2005
Amendment
The very preamble of the Act signifies that an Act to amend and
codify t law relating to intestate succession among Hindus. The
Act aims to lay down an uniform law of succession whereas attempt
has been made to ensure equality inheritance rights between sons
and daughters. It applies to all Hindus including Budhists, Jains
and Sikhs. It lays down an uniform and comprehensive system of
inheritance and .applies to those governed by the Mitakshara and
Dayabha schools as well as other [6] schools. The Hindu Succession
Act reformed the Hindu personal law and gave women greater
property rights, allowing her f ownership rights instead of
limited rights in property.
The daughters were also
granted property rights in their father's estate. In the matter of
succession of property of a Hindu male dying intestate, the Act
lays, down a set of general rules in sections 8 to 13. Sections 15
and 16 of the act contain separate general rules affecting
succession to the property of a fem intestate. Under section 8 of
the Act three Classes [7] of heirs recognized by Mitakshara Law
and three Classes[8] of heirs recognised by Dayabhaga Law cease
exist in case of devolution taking place after coming into force
of the Act. The
heirs are divided into instead, four Classes viz:
(i) Heirs in Class I of the Schedule
(ii) Heirs in Class II of the Schedule
(iii) Agnates, and
(iv) Cognates.
Of course mother, widow, son
and daughter are primary heirs. In the absence of Class I heirs,
the property devolves on Class II heirs and in their absence first
on agnates and then on cognates. Still some sections of the Act
came under criticism evoking controversy as being favourable to
continue inequality on the basis of gender. One such provision has
been the retention of mitakshara coparcenary with only males as
coparceners [9].
As per the Law Commission
Report, coparcenary constitutes a narrower body of persons within
a joint family and consists of father, son, son's son and son's
son's son. Thus ancestral property continues to be governed by a
wholly patrilineal regime, wherein property descends only through
the male line as only the male members of a Joint Hindu Family
have an interest by birth in the coparcenary property, in
contradiction with the absolute or separate property of an
individual coparcener, devolve upon surviving coparceners in the
family, according to the rule of devolution by survivorship. Since
a woman could not be a coparcener, she was not entitled to a share
in the ancestral property by birth.Section 6 of the Act, although
it does not interfere with the special rights of I those who are
members of a mitaksltara coparcenary, recognises, without
abolishing joint family property, the right upon death of a
coparcener, of certain members of his preferential heirs to claim
an interest in the property that would have been allotted to such
coparcener if a parititon [10] of the joint family property had in
fact taken place immediately before his death.
Thus section 6 of the Act,
while recognising the rule of devolution by survivorship among the
members of the coparcenary, makes an exception to the rule in the
proviso. According to the proviso, if the deceased has left a
surviving female relative specified in Class I of the Schedule I
or a male relative specified in that Class who claims through such
female relation, the interest of a deceased in mitakshara
coparcenary property shall devolve by testamentary of intestate
succession under the Act and not as survivorship [11]. Thus
non-conclusion of women as coparceners in the joint family
property under the mitakshara system as reflected in section 6 of
the Act relating to devolution of interest in coparcenary
property, has been under criticism for being violative of the
equal rights of women guaranteed under the Constitution in
relation to property rights. This means that females cannot
inherit ancestral property as males do. If a joint family gets
divided, each male coparcener takes his share and females get
nothing. Only when one of the coparceners dies, a female gets
share of his interest as an heir to the deceased. Further as per
the proviso to section 6 of the Act, the interest of the deceased
male in the mitakshara coparcenary devolve by intestate succession
firstly upon the heirs specified in Class I of Schedule I. Under
this Schedule there are only four primary heirs, namely son,
daughter, widow and mother. For the remaining eight, the principle
of representation goes up to two degrees in the male line of
descent. But in the female line of descent, it goes only upto one
degree. Thus the son's son's son and the son's son's daughter get
a share but a daughter's daughter's son and daughter's daughter's
daughter do not get anything.
Again as per section 23 of the
Act married daughter is denied the right to residence in the
parental home unless widowed, deserted or separated from her
husband and female heir has been disentitled to ask for partition
in respect of dwelling house wholly occupied by members of joint
family until the male heirs choose to divide their respective
shares therein. These provisions have been identified as major
sources of disabilities thrust by law on woman. Another
controversy is the establishment of the right to will the
property. A man has full testamentary power over his property
including his interest in the coparcenary.
On the whole the Hindu
Succession Act [12] gave a weapon to a man to deprive a woman of
the rights she earlier had under certain schools of Hindu Law. The
legal right of Hindus to bequeath property by way of will was
conferred by the Indian Succession Act, 1925.
The
Hindu Succession (Amendment) Act, 2005 - A Prologue:
This amending Act of 2005 is an
attempt to remove the discrimination as contained in the amended
section 6 of the Hindu Succession Act, 1956 by giving equal rights
to daughters in the Hindu mitakshara coparcenary property as to
sons have. Simultaneously section 23 of the Act as disentitles the
female heir to ask for partition in respect of dwelling house
wholly occupied by a Joint Family until male heirs choose to
divide their respective shares therein, was omitted by this
Amending Act. As a result the disabilities of female heirs were
removed. ?This is a great step of the government so far the Hindu
Code is concerned.
This is the product of 174th
Report of the Law Commission of India on "Property Rights of
Women: Proposed Reform under the Hindu Law". First, the 2005 act,
by deleting a major gender discriminatory clause - Section 4 (2)
of the 1956 HSA - has made women's inheritance rights in
agricultural land equal to men's. Section 4(2) excluded from the
purview of the HSA significant interests in agricultural land, the
inheritance of which was subject to the succession rules specified
in state-level tenurial laws. Especially in the north-western
states, these laws were highly gender unequal and gave primacy to
male lineal descendants in the male line of descent. Women came
very low in the succession order and got only a limited estate.
The new legislation brings male and female rights in agricultural
land on par for all states, overriding any inconsistent state
laws. This can potentially benefit millions of women dependent on
agriculture for survival. Second, the 2005 act makes all
daughters, including married ones, coparceners in joint family
property. The 1956 HSA distinguished between separate property and
joint family property.
The separate property of a
(non-matrilineal) Hindu male dying intestate (without leaving a
will) went equally to his class I heirs, viz, son, daughter, widow
and mother (and specified heirs of predeceased children). On joint
family property, those previously governed by `Mitakshara'
(prevailing in most of India) differed from those governed by `Dayabhaga'
(prevailing in Bengal and Assam). For the latter, joint family
property devolved like separate property. But in Mitakshara joint
family property, while the deceased man's "notional" share went
intestate to all class I heirs (including females) in equal parts;
sons, as coparceners, additionally had a direct birthright to an
independent share. Sons could also demand partition of the joint
family property; daughters could not. The 2005 act does not touch
separate property. But it makes daughters coparceners in the
Mitakshara joint family property, with the same birthrights as
sons to shares and to seek partition. In addition, the act makes
the heirs of predeceased sons and daughters more equal. Third, the
2005 act by deleting Section 23 of the 1956 HSA gives all
daughters (including those married) the same rights as sons to
reside in or seek partition of the parental dwelling house.
Section 23 disallowed married daughters (unless separated,
deserted or widowed) even residence rights in the parental home,
and unmarried daughters had rights of residence but not partition.
Fourth, the legislation removes a discriminatory section which
barred certain widows from inheriting the deceased's property, if
they had remarried.
According to the amending Act
of 2005, in a Joint Hindu Family governed by the mitakshara Law,
the daughter of a coparcener shall, also by birth become a
coparcener in her own right in the same manner as the son heir.
She shall have the same rights in the coparcenary property as she
would have had if she had been a son. She shall be subject to the
same liabilities and disabilities in respect of the said
coparcenary property as that of a son and any reference to a Hindu
mitakshara coparencer shall be deemed to include a reference to a
daughter. But this provision shall not apply to a daughter married
before the commencement of the Hindu Succession (Amendment) Act of
2005.
This provision shall not
affect or invalidate any disposition or alienation including
partition or testamentary disposition of property which had taken
place before 20th December, 2004.Further any property to which
female Hindu becomes entitled by virtue of above provision shall
be held by her with the incidents of coparcenary ownership and
shall be regarded, as property capable of being disposed of by her
by will and other testamentary disposition. The provision was also
made that where a Hindu dies after the commencement of the Hindu
Succession (Amendment) Act of 2005, his interest in the property
of a Joint Hindu Family governed by the Mitakshara Law, shall
devolve by testamentary or intestate succession under the Act and
not by survivorship, and the coparcenary property shall be deemed
to have been divided as if a partition had taken place.
Further the daughter is
allotted the same share as is allotted to a son. The provision was
also made that the share of the predeceased son or a predeceased
daughter as they would have got, had they been alive at the time
of partition, shall be allotted to the surviving child of such
predeceased son or of such predeceased daughter.
Further the share of the
pre-deceased child of a predeceased son or of a pre deceased
daughter as such child would have got, had he or she been alive at
the time of the partition, shall be allotted to the child of such
pre-deceased child of the pre-deceased son or a pre-deceased
daughter. The most important fact is that the interest of a Hindu
mitakshara coparcener shall be deemed to be the share in the
property that would have been allotted to him if a partition of
the property bad taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.
This amending Act of 2005 has also clear provision that, after
commencement of the Amending Act of 2005, no court shall recognise
any right to proceed against a son, grandson or great grandson for
the recovery of any debt due from his father, grandfather or great
grandfather (on the ground of the pious obligation under the Hindu
Law), of such son, grandson or great grandson to discharge any
such debt. But if any debt contracted before the commencement this
Amending Act of 2005 the right of any creditor, to proceed against
son, grandson or great grandson, shall not affect or any
alienation relating to any such debt or right shall be enforceable
under the rule of pious obligation in the same manner and to the
same extent as it would have been. enforceable as if Hindu
Succession Amending Act of 2005 had not been enacted.
Further for the purpose of
creditors right stated above the expression son, grandson or great
grandson shall be deemed to refer to the son, grandson or great
grandson who was born or adopted prior to the commencement (9th
September, 2005) of the Amending Act of 2005. Such provisions
shall not apply to a partition which has been done before 20th
December, 2004. Sections 23 and 24 omitted. Likewise special
provisions relating to rights in respect of dwelling house and the
disentitlement rights of widow's remarrying, respectively omitted
from the Act. The Amending Act also in the Schedule of the Hindu
Succession Act, 1956 added new heirs viz, son of a pre-deceased
daughter of a pre-deceased daughter of a pre-deceased daughter
daughter of a pre-deceased daughter, son of a pre-deceased
daughter, daughter of a pre-deceased son.
Thus the amendment of Hindu
Succession Act of 1956 in 2005 is a total commitment for the women
empowerment and protection of women's right to property. This
Amending Act in a partrilineal system, like mitakshara School of
Hindu Law opened the door for the women, to have the birth right
in the family property like the son. The women were vested the
right of control and ownership of property beyond their right to
sustenance.
Amendments To The Hindu Succession Act And Gender Equality
The recent legislative proposals amending the Hindu Succession Act
are important steps towards gender equality and abolition of the
patrilineal system of inheritance prevailing among Hindus. These
proposals are based on the 174th Report of the Law Commission
published in 2000 and seek to give Hindu women equal rights in the
Mitakshara Joint Family Property. The proposed Bill also seeks to
do away with Section 23 of the Hindu Succession Act which denies a
woman the right to seek partition of an inherited ?dwelling? unit
/ house if other male heirs are residing in it and further
restricts her right to reside in the inherited residence unless
she is a widow or has been separated from or deserted by her
husband.
However, the proposed changes
are not comprehensive enough and women will still be subjected to
unequal property rights in agricultural land as Section 4(2) of
the Hindu Succession Act allows for special State laws to address
the issue of fragmentation of agricultural
holdings, fixation
of ceiling and devolution of tenancy rights in these holdings.
Thus, State laws exist in Delhi, U.P, Madhya Pradesh, Punjab &
Haryana, which deny women equal rights of succession in tenancy
rights. Further, certain other Sections of the Hindu Succession
Act discriminate against women through the discriminatory order of
succession for male & female heirs. The proposed Amendments to the
Mitakshara Joint Family Property laws making women equal
coparceners are sought to be made applicable only to women who are
not married at the time the law is passed and is thus patently
unjust also.
When the Hindu Succession Act
was passed in 1956, the Mitakshara coparcenery system was retained
and the then Government refused to abolish this system of Joint
family in spite of contrary recommendations by the Select
Committee and protest by AIWC. Under the Mitakshra System of Joint
Family, which prevails in all parts of India apart from Bengal
only males are members (coparceners) of the Joint Family and the
right to inheritance was by way of survivorship and not by way of
succession . The son acquired a right and interest in Joint Family
Property on birth while a woman family member only had a right to
maintenance.
However the Hindu Succession
Act gave a share to the first class female heirs (daughters and
wives) in the share of the father / husband in the joint family
property who died intestate (without making a will). However this
share was not equal to the share, which a son inherited, since the
son was deemed to be coparcener (member of the joint family) by
birth. For e.g. in a joint family consisting of a father, a son
and a daughter, both the father and the son, according to the
Mitakshara coparcenary system , would be equal owners of the
property. Thus when the father died, after the 1956 Act, his share
would devolve equally on both the son and daughter. However the
daughter in this particular case would only get 1/4th share of the
property whereas the brother who was already a co owner would have
his half share plus 1/4th share of the property. The Amendment
cleared by the Union Cabinet proposes to make the daughter also a
coparcener in the Joint Family Property. It is pertinent to point
out that some states like Karnataka, Andhra Pradesh, Maharashtra
and Tamilnadu have already passed laws making the daughter a
member (coparcener) of the joint family while other states like
Kerala have completely abolished the joint family system.
This could be done as laws of
succession fall in Entry 5 of the concurrent list of the VIII th
Schedule to the Constitution. It is relevant to note that the
Hindu Code Bill, as originally framed by the B.N.Rao committee and
piloted by Dr B.R.Ambedkar, had recommended abolishing the
Mitakshara coparcenery with its concept of survivorship and the
son?s right by birth in a joint family system and substitute it
with a principle of inheritance by succession. In fact, AIDWA had
also during the Dowry Prohibition Act amendments in early 1980s,
asked for abolition of the Joint family System. In this sense the
Amendment doesn't go far away. The other Amendment, which was
cleared by the Cabinet, was to abolish Section- 23 of the Hindu
Succession Act 1956. This provision denies a married daughter the
right to residence in an inherited parental home unless she is
widowed, deserted or separated from her husband. The section
further denies the daughter, who has inherited a house along with
a male member of a family from asking for her share of the
property if any member of the family resides in the inherited
house, until the male heirs also agreed. However, no such
restriction has been placed by the Section 23 on a male heir.
Apart from this the proposed
amendment seeks to make the new law applicable only to those women
who are not married at the date of the amendment. This provision
is based on the Maharashtra Law and is said to be made on the
presumption that women, who are married have already received
their share of property etc. as dowry / gift during their
marriage. This is patently unfair not only because many women may
not have received dowry but also because the amount of dowry
received can hardly be equated to equal rights in property. In
reality this is a devise to restrict the number of women, who
inherit and to maintain status quo as far as possible.
Apart from the obvious
discrimination in Section 6 and Section 23 discussed above,
certain other sections of Hindu Succession Act also blatantly
discriminate against women and require amendment. The most
important section, which has been used to deny property rights to
women in agricultural land, is Section 4 (2) of the Hindu
Succession Act, which allows for State legislation to prevail over
the Hindu Succession Act. This Section states that the Act shall
not apply to laws ?providing for the prevention of fragmentation
of agricultural holdings or for fixation of ceilings or for the
devolution of tenancy rights in respect of such holdings?.
Judgments under this Section have upheld laws under Section 4 (2)
of the Hindu Succession Act and have mostly denied women equal
rights in agricultural land. While some courts have held that the
Hindu Succession Act will apply to agricultural holding, this can
only be in the absence of State laws for the purposes mentioned in
Section 4 (2) or if the States laws under Section 4(2) themselves
apply the Hindu Succession Act or personal laws to ?devolution of
tenancy rights?. Courts have upheld the State Land Reform Acts,
relating to devolution of tenancy rights even though these do not
allow women to inherit these tenancies. Some courts have further
interpreted the term ?devolution? of tenancy rights broadly /
comprehensively to include devolution of tenure holder's right and
have thus also denied women ownership rights over agricultural
land.
Thus even laws meant for land
reform and to enforce ceiling have resulted in denying to women
equal rights over land and a chance to improve her disempowered
status. Section 30 of the Hindu Succession Act allows any Hindu to
dispose off his property including his share in the Joint Family
Property by will. As has been pointed by women's organizations/
groups and activists this Section can and has been used to
disinherit women. It has been recommended by many that a
limitation should be placed on the right to will. Such a provision
exists in Muslim law where a Muslim can only Will away up to a
maximum of -1/3rd of his property.
Section 15 of the Hindu
Succession Act which specifies how the property of a female Hindu
will devolve also contains certain discriminatory provisions. It
states that in the absence of class I heirs( son, daughters &
husband) the property of a female Hindu will go to her husband's
heirs and only if these heirs are not then will the property
devolve upon her mother and father. However, in the absence of the
mother and father, the property will again devolve upon the heirs
of the father and only if there are no heirs of father will the
property devolve upon the heirs of the mother.
The proviso to Section-6 of
Hindu Succession Act contains another instance of gender bias. The
proviso states that the property of the deceased in the Mitakshara
Coparcenary shall devolve by intestate succession if the deceased
had a female heir or a male heir who claims through such female
relative. In order to appreciate the gender bias it is necessary
to see the rules of devolution of interest under section 8 of the
Hindu Succession Act. In this section there are only four primary
heirs in the Schedule to class I, namely, mother, widow, son and
daughter. If, however, for example the son or daughter has already
died, their children can inherit the property. The principle of
representation goes up to two degree in the male line of descent;
but in the female line of descent it goes only upto one degree.
Accordingly, the deceased son's son's son and son's son's daughter
get a share but a deceased daughter's daughter's son and
daughter's daughter's daughter do not get anything. A further
infirmity is that a widow of a pre-deceased son and grandson are
class-I heirs, but the husbands of a deceased daughter or
grand-daughter are not heirs.
Critical Appraisal Of Amendments To The Hindu Succession Act
The recent amendment to the Hindu Succession Act has made the
daughter a member of the coparcenary. It also gives daughters an
equal share in agricultural property. These are significant
advancements towards gender equality. The Hindu Succession
(Amendment) Bill 2004, passed unanimously by the Lok Sabha, comes
after a long gap: the Hindu Succession Act was passed in 1956. The
present debate about removing discrimination against women to a
large extent remains confined to the experts. The law, obtuse at
the best of times, takes on an even more tedious character when it
comes to inheritance laws.
For almost half a century
since the passing of the Hindu Succession Act, 1956, there has
been the widespread belief that under Hindu personal law daughters
are equal to sons. This belief was based on Section 10 of the Act
dealing with the distribution of property of a Hindu who has died
without making a will, referred to as ?intestate? in law. The
provision unequivocally declares that property is to be
distributed equally among Class I heirs, as specified in the
schedule. The schedule clearly lays down daughters, mothers and
widows as Class I heirs entitled to a share equal to that of sons.
This, though seemingly a huge step in favour of gender justice,
was in fact more a sleight of hand.
The mischief lay in customary
Hindu law and the concept of mitakshara coparcenary
property. A Hindu joint family consists of a common ancestor and
all his lineal male descendants, together with wives or widows and
unmarried daughters. The existence of a common ancestor, necessary
to bring a joint Hindu family into existence, continues even after
the death of the ancestor. Upper links are removed and lower ones
are added; the joint family can continue indefinitely. Except in
the case of adoption, no outsiders are permitted and membership to
the joint family is by birth or marriage to a male member. A Hindu
joint family is a unit and is represented by the
karta or head.
The Hindu Succession Act
retained the coparcenary. In fact, Section 6 specifically declares
that, on death, the interest of a male Hindu in mitakshara
coparcenary property shall devolve by survivorship to other
members of the coparcenary and not by succession under the Act.
However, it laid down that the separate share of the deceased,
computed through the device of a deemed
partition just before
his death, would devolve according to the Succession Act.
The Act did not clearly spell
out the implications of exclusion from membership to the
coparcenary in respect of inheritance of property. Thus, if a
widowed Hindu male died leaving a son and a daughter, then,
according to the explanation in Section 6 of the Act, there will
be deemed to be a partition just before the death of the person.
In this deemed or ?notional? partition, the father and son share
equally and each gets half the property. The father's half will be
shared equally by his son and daughter as Class I heirs. In
effect, therefore, the daughter gets one-fourth of the property,
while the son gets his own half from the deemed partition as a
coparcener and an additional half from the share of his father.
Together that would be three-fourths of the property. It is this
inequity between son and daughter that has now been removed by the
amendment.
The preferential right by
birth of sons in joint family property, with the offering of
shradha
for the spiritual benefit and solace of ancestors, have for
centuries been considered sacred and inviolate. It has also played
a major role in the blatant preference for sons in Indian society.
This amendment, in one fell swoop, has made the daughter a member
of the coparcenary and is a significant advancement towards gender
equality.
After the amendment, daughters
will now get a share equal to that of sons at the time of the
notional partition, just before the death of the father, and an
equal share of the father's separate share. However, the position
of the mother vis-a-vis the coparcenary stays the same. She, not
being a member of the coparcenary, will not get a share at the
time of the notional partition. The mother will be entitled to an
equal share with other Class I heirs only from the separate share
of the father computed at the time of the notional partition. In
effect, the actual share of the mother will go down, as the
separate share of the father will be less as the property will now
be equally divided between father, sons and daughters in the
notional partition.
The original bill, introduced
in 2004, exempted agricultural land from the purview of the
amendment. A considerable section of society is totally against
equal shares to daughters with respect to agricultural land. The
inclusion of agricultural land in the amendment, giving equal
shares to daughters and overriding state-level discriminatory
tenurial laws, is a great credit to parliament. Effective lobbying
by women's groups must also be given due credit.
The equal sharing of the
father's property applies in cases where he dies intestate -- that
is, without making a will. Given the bias and preference for sons
and notions of lineage, discrimination against daughters in
inheritance through wills is bound to remain. In most cases, the
terms of the will would favour the son. Perhaps the share of
property that can be willed by a person could be restricted, as a
step towards greater gender equality. For example, Islamic
jurisprudence lays down that a person can only will one-third of
his property. Provisions to check the prevalent practice of
?persuading? daughters to give up their share in joint family
property is another area that requires attention. This is an
opportune time to keep up the momentum for further reforms to
reduce gender inequities and move towards a more equal society.
The amendment will only
benefit those women who are born into families that have ancestral
property. There is no precise definition of ancestral property.
Given the fact that families have long since been fragmented and
the fact that the joint family system is on the decline, it is not
at all clear whom this law will benefit. It cannot apply to
self-acquired property. No person by birth will acquire any rights
in self-acquired property. In today's context, most property is
self-acquired and that property must follow principles of
succession under the different succession laws. Moreover, its
owner can dispose off such property during his lifetime by gift.
It can be bequeath by will to anyone of his choice. The proposed
amendment notwithstanding, a Hindu father can disinherit his wife
or daughter by will, in his self-acquired property. The amendment
therefore by itself cannot offer much to Hindu women. What is
more, under the laws of certain states, it will actually
disadvantage widows, as the share of the daughter will increase in
comparison to the widow. The amendment is not at all well thought
out and can play women against each other. There is no equity in
that. Thus, though seemingly progressive, it does nothing more
than make a political point, that the state is committed to
abolishing discrimination against women, but only Hindu women. The
position of women married into the joint family will actually
become worse.
The proposed amendment only
makes the position of the female members of the joint family
worse. With a daughter along with the sons acquiring a birthright,
which she can presumably partition at any time, the rights of
other members of the joint family get correspondingly diminished.
While the reforms of the 1950s disadvantaged a divorced wife, the
reforms of the present times will disadvantage married women as
well. Until now, the only protection women had in the marital home
was the status of being married, which carried with it the right
to be maintained, not only by the husband, but by the joint family
and its assets as a whole. Thus married women who lived in a joint
Hindu family had the protection of the family home. This
protection will now stand eroded, to the extent that the total
divisible amount gets reduced. Something similar will happen to
Hindu widows. Daughters will acquire a birthright in Hindu joint
family property, mothers stand to lose a portion of the cake, as
an inheritance. Since Hindu law does not grant any rights to wives
in marital property, their only chance of getting anything was on
an inheritance, as equal share with the sons and daughters, if the
marriage was subsisting on the death of the husband. On divorce,
of course, even that right to inheritance disappears. It is
birthright in Hindu law that is the root of the problem.
Birthright by definition is a conservative institution, belonging
to the era of feudalism, coupled as it was with the rule of
primogeniture and the inalienability of land. When property
becomes disposable and self-acquired, different rules of
succession have to apply. It is in the making of those rules that
gender justice has to be located. What the proposed amendment does
is to reinforce the birthright without working out its
consequences for all women.
Justice cannot be secured for
one category of women at the expense of another. It is impossible
to deal with succession laws in isolation. One has to
simultaneously look at laws of matrimonial property, divorce and
succession to ensure a gender just regime of laws. The present
bill does nothing of the kind. The exercise should be abandoned in
toto.
Conclusion
Empowerment of women, leading to an equal social status in society
hinges, among other things, on their right to hold and inherit
property. Several legal reforms have taken place since
independence in India, including on equal share of daughters to
property. Yet equal status remains illusive. Establishment of laws
and bringing practices in conformity thereto is necessarily a long
drawn out process. The government, the legislature, the judiciary,
the media and civil society has to perform their roles, each in
their own areas of competence and in a concerted manner for the
process to be speedy and effective.
These amendments can empower
women both economically and socially. and have far-reaching
benefits for the family and society. Independent access to
agricultural land can reduce a woman and her family's risk of
poverty, improve her livelihood options, and enhance prospects of
child survival, education and health. Women owning land or a house
also face less risk of spousal violence. And land in women's names
can increase productivity by improving credit and input access for
numerous de facto female household heads.
Making all daughters
coparceners like wise has far-reaching implications. It gives
women birthrights in joint family property that cannot be willed
away. Rights in coparcenary property and the dwelling house will
also provide social protection to women facing spousal violence or
marital breakdown, by giving them a potential shelter. Millions of
women - as widows and daughters - and their families thus stand to
gain by these amendments.
End
Notes
1. 174th Report of Law Commission of India under the Chairmanship
of Justice B.P. Jeevan Reddy, vide D.O. No. 6(3)(59)/99-LC(LS),
dated 5th May, 2000.
2. Mulla, Principles of Hindu Law (1998 17th ed. by SA Desai), p.
168.
3. Ibid.
4. Mayne's, Treatise on Hindu Law & Usage, (1996 14th Edn., edt.
by Alladi Kuppuswami p. 1065.
5. M. Indira Devi, "Woman's Assertion of Legal Rights to Ownership
of property" in Women & Law Contemporary Problems, (1994 edt. by
L. Sarkar & B. Sivaramayya) p. 174; also section 3(3) of Hindu
Women's Right to Property Act, 1937.
6. Murumakkattayam, Aliyasantans and Nambudri.
7. Gotraja, Sapindas, Samanodlakas and Bandhus
8. Sapindas, Sakulyas and Bandhus
9. 7th Report of Parliamentary Standing Committee dated 13th May,
2005.
10. Notional partition.
11. 7th Report of Parliamentary Standing Committee
12. Before amendment of Hindu Succession Act, 1956 in 2005
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Whether Amendments Made To The Hindu Succession Act Are
Achieving Gender Quality?
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