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Introduction
The Constitution of India provides that every person is entitled
for
equality before law and equal protection of the laws and thereby
prohibits discrimination on the basis of caste, creed and sex.
The discrimination on the basis of sex is permissible only as
protective
measures to the female citizens as there is need to empower women
who
have suffered gender discrimination for centuries.
Empowerment of women, leading to an equal social status with men
hinges,
among other things, on their right to hold and inherit property.
Civilized societies across the globe ensure that women's
inheritance
rights are more secure than those of men because women take on the
tremendous responsibility of producing and nurturing the next
generation.
In India, women's rights have suffered serious setbacks among all
communities. Before 1956
Despite the Hindu Succession Act being passed in 1956, which gave
women
equal inheritance rights with men, the mitakshara coparcenary
system was
retained and the government refused to abolish the system of joint
family. According to this system, in the case of a joint family,
the
daughter gets a smaller share than the son . While dividing the
father's
property between the mother, brother and sister, the share is
equal.
The Constitution of India enshrines the principle of gender
equality in
its Preamble and Parts III, IV and IVA pertaining to Fundamental
Rights,
Fundamental Duties and Directive Principles respectively. The
Constitution not only grants equality to women, but also empowers
the
State to adopt measures of positive discrimination in favour of
women.
And now as India becomes increasingly aware of the need for equal
rights
for women, the government can't afford to overlook, property
rights have
a deep impact on the national economy. The need to dispense gender
justice raises deep political debate and at times acrimony in
legislative forums. This enthused the ?house? to move a bill to
make
amendments in the Hindu Succession Act, to secure the rights of
women in
the area of property.
The aim is to end gender discrimination in Mitakshara coparcenary
by
including daughters in the system. Mitakshara is one of the two
schools
of Hindu Law but it prevails in a large part of the country. Under
this,
a son, son's son, great grandson and great great grandson have a
right
by birth to ancestral property or properties in the hands of the
father
and their interest is equal to that of the father. The group
having this
right is termed a coparcenary. The coparcenary is at present
confined to
male members of the joint family, it has been further elucidated
in the
project.
The Hindu Succession (Amendment) Act, 2005 is a landmark. After 50
years, the Government finally addressed some persisting gender
inequalities in the 1956 Hindu Succession Act (1956 HSA), which
itself
was path-breaking. The 2005 Act covers inequalities on several
fronts:
agricultural land; Mitakshara joint family property; parental
dwelling
house; and certain widow's. The amendment has come into operation
from
2005; our project makes an analysis of this amendment, in that
specifically dealing with changes brought in the woman's property
rights
in Mitakshara joint family property, what effects it will have on
the
position of women, loopholes in the amendment, its advantages and
disadvantages and few suggestions to make it more effectual.
What
Is Mitakshara Coparcenary?
Coparcenary literally means Joint inheritance or heirship of
property.
Also called parcenary. Coparcenary is a narrower body of persons
within
a joint family, and consists of father, son, son's son, son's
son's son.
The disparity in the property rights on the basis of gender is
deep
rooted and can be traced back to the ancient times. Traditional
Hindu
inheritance laws evolved from the ancient texts of Dharmashastras
and
the various commentaries and legal treatises on them. In
particular, the
Mitakshara and the Dayabhaga legal doctrines, dated around the
twelfth
century AD govern the inheritance practices among the Hindus. In
most of
northern and parts of western India Mitakshara law is prevalent.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 great grandson constitute a class of coparceners,
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
recognizes 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.
Position Of Woman (In Regards To Property Rights) Prior To
Enactment Of Hindu Succession Act, 1956-
Since time immemorial the framing of all property 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
Act of 1956, Shastric and Customary laws, which varied from region
to
region, governed Hindus and sometimes it varied in the same region
on a
caste basis. As the country is vast and communications and
social interactions in the past were difficult, it led to
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.
But, however the social reform movement during the
pre-independence
period raised the issue of gender discrimination and a number of
ameliorative steps were initiated. The principal reform that was
called
for, and one which became a pressing necessity in view of changed
social
and economic conditions, was that in succession there should be
equitable distribution between male and female heirs and the Hindu
women's limited estate should be enlarged into full ownership
(however
that actually never happened). The only property over which she
had an
absolute ownership was the Stridhan meaning women's property.
Prior to Hindu Law of Inheritance Act, 1929-
Prior to this Act, the Mitakshara law also recognizes 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 Act 1929,
the
Bengal, Benares and Mithila sub schools of Mitakshara recognized
only
five female relations as being entitled to inherit namely - widow,
daughter, mother paternal grandmother, and paternal great-grand
mother .
The Madras sub-school recognized the heritable capacity of a
larger
number of female's 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 Act, 1929.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, recognized 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.
Hindu Law of Inheritance Act, 1929-
This was the earliest piece of legislation, bringing woman
into the scheme of inheritance. This Act, conferred inheritance
rights
on three female heirs i.e. son's daughter, daughter's daughter and
sister (thereby creating limited restriction on the rule of
survivorship).
Hindu
Women's Right to Property Act (XVIII of), 1937-
This was the landmark legislation conferring ownership rights on
women.
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 . 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 . 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.
Constitutional Provisions ensuring Gender Equality-
The framers of the Indian Constitution took note of the adverse
condition of women in society and a number of provisions and
safeguards
were included in the Constitution to ward off gender inequality.
In this
context, Articles 14 , 15(3) and 16 of the Constitution can be
mentioned. These provisions are part of the Fundamental Rights
guaranteed by the Constitution. Part IV containing Directive
Principles
of State Policy, which are no less fundamental in the governance
of the
State to ensure equality between man and woman such as equal pay
for
equal work. The Directive Principles further endorses the
principle of
gender equality, which the State has to follow in matters of
governance.
Similarly, Part IVA of the Constitution enshrining the Fundamental
Duties states that:
# It shall be the duty of every citizen of India -
(e) ... to renounce practices derogatory to the dignity of
women...
Despite these provisions for ensuring equal status, unfortunately
a
woman is still not only neglected in her own natal family but also
the
family she marries into because of certain laws and attitudes.
Position Of Woman After Enactment Of Hindu Succession Act, 1956-
After the advent of the Constitution, the first law made at the
central
level pertaining to property and inheritance concerning Hindus was
the
Hindu Succession Act, 1956 (hereinafter called the HSA). This Act
dealing with intestate succession among Hindus came into force on
17th
June 1956. It brought about changes in the law of succession and
gave
rights, which were hitherto unknown, in relation to a woman's
property.
The section 6 of Hindu Succession Act, 1956 follows as:
Devolution of interest in coparcenary property. - When a male
Hindu dies
after the commencement of this Act, having at the time of his
death an
interest in a Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving members
of the
coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female
relative
specified in class I of the Schedule or a male relative specified
in
that class who claims through such female relative, the interest
of the
deceased in the Mitakshara coparcenary property shall devolve by
testamentary or intestate succession, as the case may be and not
by
survivorship.
Explanation 1. For the purpose of this section, 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 had taken place immediately before his death,
irrespective of
whether he was entitled to claim partition or not.
Explanation 2. Nothing contained in the proviso to this section
shall
be construed as enabling a person who has separated himself from
the coparcenary before the death of the deceased or any of his heirs
to
claim on intestacy a share in the interest referred to therein.
Section 6 deals with the devolution of the interest of a male
Hindu in
coparcenary property it says that if a male Hindu dies leaving
behind
his share in Mithakshara Co-parcenary property , such property
will pass
on to his sons, son's son's, son's son's son by survivorship, on
surviving members. In case there are female relatives like
daughter,
widow, mother, daughter of predeceased son, daughter of
predeceased
daughter, widow of predeceased son, widow of predeceased son of a
predeceased son, then the interest of the deceased co-parcenary
will
pass on to his heirs by succession and not by survivorship .
And while recognizing 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 him
surviving a female relative specified in Class I of Schedule I, or
a
male relative specified in that Class who claims through such
female
relative, the interest of the deceased in the Mitakshara
coparcenary
property shall devolve by testamentary or intestate succession
under
this Act and not by survivorship. The rule of survivorship comes
into
operation only: -
· Where the deceased does not leave him surviving a female
relative
specified in Class I, or a male relative specified in that Class
who
claims through such female relative; and
· When the deceased has not made a testamentary disposition of his
undivided share in the coparcenary property.
As pointed out above that the main provision of this section deals
with
the devolution of the interest of a coparcener dying intestate by
the
rule of survivorship and the proviso speaks of the interest of the
deceased in the Mitakshara Coparcenary Property. Now, in order to
ascertain what is the interest of the deceased coparcener, one
necessarily needs to keep in mind the two Explanations under the
proviso. These two Explanations give the necessary assistance for
ascertaining the interest of the deceased coparcener in the
Mitakshara
Coparcenary Property. Explanation I provides for ascertaining the
interest on the basis of a notional partition by applying a
fiction as
if the partition had taken place immediately before the death of
the
deceased coparcener. Explanation II lays down that a person who
has
separated himself from the coparcenary before the death of the
deceased
or any of the heirs of such divided coparcener is not entitled to
claim
on intestacy a share in the interest referred to in the section.
Under the proviso if a female relative in class I of the schedule
or a
male relative in that class claiming through such female relative
survives the deceased, then only would the question of claiming
his
interest by succession arise. The Supreme Court in 1978 Gurupad v.
Heerabai and reiterated later in 1994 in Shyama Devi v. Manju
Shukla
wherein it has been held that the proviso to section 6 gives the
formula
for fixing the share of the claimant and the share is to be
determined
in accordance with Explanation I by deeming that a partition had
taken
place a little before his death which gives the clue for arriving
at the
share of the deceased.Section 6 can further be understood by the following-Example: If
?C?
dies leaving behind his two sons only, and no female heirs of
class I
then property of ?C? passes to his sons by survivorship since
there are
no female relatives like daughter or any other member specified in
the
class I of first schedule. In case ?C? dies leaving behind two
sons and
three daughters, then property of ?C? will pass on to his sons and
daughters by succession in the following manner.
Firstly property of "C" is divided between
"C" and his two sons.
The
shares of "C" and his two sons are, C gets one-third and each son
one-third.
The sons are entitled to the equal share of the property along
with the
father. But the daughters are entitled to the share in the share
of the
deceased ?C? along with other sons. So the sons will get one-third
of
the property and a share, which is one-fifth in the share of
deceased
?C?. Hence the daughter does not take equal share with the son.
However, section 6 did not interfere with the special rights of
those
who are members of a Mitakshara coparcenary except to provide
rules for
devolution of the interest of a deceased in certain cases. The Act
lays
down a uniform and comprehensive system of inheritance and
applies, interalia, to persons governed by Mitakshara and
Dayabhaga
Schools as also to those in certain parts of southern India who
were
previously governed by the Murumakkattayam, Aliyasantana and
Nambudri
Systems. The Act applies to any person who is a Hindu as defined
in
section 2 of HSA . But now the question the question is whether,
the Hindu Succession Act actually gave women an equal right to
property or did it only profess to do so. Significantly, the provisions
regarding
succession in the Hindu Code Bill, as originally framed by the B.N.Rau
Committee and piloted by Dr.Ambedkar, was for abolishing
Mitakshara
coparcenary with its concept of survivorship and the son's right
by
birth in a joint family property and substituting it with the
principle
of inheritance by succession. These proposals met with a storm of
conservative opposition. The extent of opposition within the
Congress or
the then government itself can be gauged from the fact that the
then
Law Minister Mr.Biswas, on the floor of the house, expressed
himself
against daughters inheriting property from their natal families.
The retention of the Mitakshara coparcenary without including
females in
it meant that females couldn't 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 a share of his share as an heir to the deceased. Thus the law
by
excluding the daughters from participating in coparcenary
ownership
(merely by reason of their sex) not only contributed to an
inequity
against females but has led to oppression and negation of their
right to
equality and appears to be a mockery of the fundamental rights
guaranteed by the Constitution.
Hence this very fact necessitated a further change in regards to
the
property rights of women, and which was done by the Hindu
Succession
(Amendment) Bill, 2004.
The
State Amendments
The idea of making a woman a coparcener was suggested as early as
1945
in written statements submitted to the Hindu Law Committee by a
number
of individuals and groups; and again in 1956, when the Hindu
Succession
Bill was being finally debated prior to its enactment an amendment
was
moved to make a daughter and her children members of the Hindu
coparcenary in the same way as a son or his children. But this
progressive idea was finally rejected and the Mitakshara Joint
family
was retained.
The concept of the Mitakshara coparcenary property retained under
section 6 of the HSA has not been amended ever since its
enactment.
Though, it is a matter of some satisfaction that five states in
India
namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and
Karnataka
have taken cognizance of the fact that a woman needs to be treated
equally both in the economic and the social spheres. As per the
law of
four of these states, (Kerala excluded), in a joint Hindu family
governed by Mitakshara law, the daughter of a coparcener shall by
birth
become a coparcener in her own right in the same manner as the
son.
Kerala, however, has gone one step further and abolished the right
to
claim any interest in any property of an ancestor during his or
her
lifetime founded on the mere fact that he or she was born in the
family.
In fact, it has abolished the Joint Hindu family system altogether
including the Mitakshara, Marumakkattayam, Aliyasantana and
Nambudri
systems. Thus enacting that joint tenants be replaced by tenants
in
common.A list of the legislation passed by the five states is set out
below and
the legislation is annexed as Annexed "1"
· The Joint Hindu Family System (Abolition) Act, 1975, Kerala.
· The Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
· The Hindu Succession (Tamil Nadu Amendment) Act, 1989.
· The Hindu Succession (Karnataka Amendment) Act, 1994.
· The Hindu Succession (Maharashtra Amendment) Act, 1994.
The
Hindu Succession (Amendment) Act, 2005
The Hindu Succession (Amendment) Act, 2005 was seeks to make two
major
amendments in the Hindu Succession Act, 1956. First, it is
proposed to
remove the gender discrimination in section 6 of the original Act.
Second, it proposes to omit section 23 of the original Act, which
disentitles a female heir to ask for partition in respect of a
dwelling
house, wholly occupied by a joint family, until the male heirs
choose to
divide their respective shares therein. However in the instant
project
we have focused specifically on the changes brought in Section 6
in
regards to the position of woman and has made a clause-by-clause
consideration of the section thus amended.
Section 6 of the Hindu Succession Act, 1956 has been restated for
convenience-
Devolution of interest in coparcenary property. - When a male
Hindu dies
after the commencement of this Act, having at the time of his
death an
interest in a Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving members
of the
coparcenary and not in accordance with this Act: Provided that, if
the
deceased had left him surviving a female relative specified in
class I
of the Schedule or a male relative specified in that class who
claims
through such female relative, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by testamentary or
intestate succession, as the case may be and not by survivorship.
Explanation 1. For the purpose of this section, 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 had taken place immediately before his death,
irrespective of
whether he was entitled to claim partition or not.
Explanation 2. Nothing contained in the proviso to this section
shall
be construed as enabling a person who has separated himself from
the coparcenary before the death of the deceased or any of his heirs
to
claim on intestacy a share in the interest referred to therein.
The Hindu Succession (Amendment) Act, 2005-
6 (l). Devolution of interest in coparcenary property.
(1) On and
from
the commencement of the Hindu Succession (Amendment) Act, 2005, in
a
Joint Hindu family governed by the Mitakshara law, the daughter of
a
coparcener shall,--
(a) by birth become a coparcener in her own right the same manner
as the
son ;
(b) have the same rights in the coparcenary property as she would
have
had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed
to
include a reference to a daughter of a coparcener:
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
the
20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by
virtue of
subsection (1) shall be held by her with the incidents of
coparcenary
ownership and shall be regarded, notwithstanding anything
contained in
this Act or any other law for the time being in force in, as
property
capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu
Succession
(Amendment) Act, 2005, his interest in the property of a Joint
Hindu
family governed by the Mitakshara law, shall devolve by
testamentary or
intestate succession, as the case may be, under this Act and not
by
survivorship, and the coparcenary property shall be deemed to have
been
divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a
son;
(b) the share of the pre-deceased son or a pre-deceased daughter,
as
they would have got had they been alive at the time of partition,
shall
be allotted to the surviving child of such pre-deceased son or of
such
pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or
of a
predeceased 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 so or a pre-deceased
daughter, as the case may be.
Explanation.-- For the purposes of this sub-section, 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 had taken place immediately before his death,
irrespective of
whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment)
Act,
2005, no court shall recognize 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 solely on the ground of
the
pious obligation under the Hindu law, of such son, grandson or
great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the
commencement
of the Hindu Succession (Amendment) Act, 2005, nothing contained
in this
sub-section shall affect--
(a) the right of any creditor to proceed against the son, grandson
or
great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any
such
debt, and any such right or alienation 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 the Hindu Succession (Amendment)
Act,
2005 had not been enacted.
Explanation.--For the purposes of clause (a), the expression
"son",
"grandson" or "great-grandson" shall be deemed to refer to the
son,
grandson or great-grandson, as the case may be, who was born or
adopted
prior to the commencement of the Hindu Succession (Amendment) Act,
2005.
(5) Nothing contained in this section shall apply to a partition,
which
has been effected before the 20th day of December 2004.
Explanation- For the purposes of this section "partition" means
any
partition made by execution of a deed of partition duly registered
under
the Registration Act, 1908 or partition affected by a decree of a
court.
Section 6 seeks to make the daughter a coparcener by birth in a
joint
Hindu family governed by the Mitakshara law, subject to the same
liabilities in respect of the said coparcenary property as that of
a
son.
Laws reflect the face of society and its evolution over the time.
To
respond to the needs of a dynamic social system, laws have to be
changed and amended, at regular intervals. As far as the basic
objective of the Act is to remove gender discriminatory practices
in the property laws of
the Hindus, whereby daughters have been given the status of
coparceners
in the Mitakshara joint family system. However, the position of
other
Class I female heirs should not suffer as a result of this move.
However, it does not interfere with the special rights of those
who are
members of Hindu Mitakshara coparcenary except to provide rules
for
devolution of the interest of a deceased male in certain cases.
The Act lays down a uniform and comprehensive system of
inheritance and
applies, inter alia, to persons governed by the Mitakshara and
Dayabhaga
schools and also to those governed previously by the
Murumakkattayam,
Aliyasantana and Nambudri laws.
It is proposed to remove the discrimination as contained in
section 6 of
the Hindu Succession Act, 1956 by giving equal rights to daughters
in
the Hindu Mitakshara coparcenary property as the sons have.
Changes Brought In The Position Of The Women (Specifically
Focusing On Section 6)
Out of many significant benefits brought in for women, one of the
significant benefit has been to make women coparcenary (right by
birth)
in Mitakshara joint family property. Earlier the female heir only
had a
deceased man's notional portion. With this amendment, both male
and
female will get equal rights.
In a major blow to patriarchy, centuries-old customary Hindu law
in the
shape of the exclusive male mitakshara coparcenary has been
breached
throughout the country.
The preferential right by birth of sons in joint family property,
with
the offering of "shradha" for the spiritual benefit and solace of
ancestors, has 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.
The significant change of making all daughters (including married
ones)
coparceners in joint family property - has been of a of great
importance
for women, both economically and symbolically. Economically, it
can
enhance women's security, by giving them birthrights in property
that
cannot be willed away by men. In a male-biased society where wills
often
disinherit women, this is a substantial gain. Also, as noted,
women can
become kartas of the property. Symbolically, all this signals that
daughters and sons are equally important members of the parental
family.
It undermines the notion that after marriage the daughter belongs
only
to her husband's family. If her marriage breaks down, she can now
return
to her birth home by right, and not on the sufferance of
relatives. This
will enhance her self-confidence and social worth and give her
greater
bargaining power for herself and her children, in both parental
and
marital families.
Now under 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. Equal
distribution of undivided interests in co-parcenery property.
However,
the position of the mother vis-à-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.
Some
Anomalies Still Persist
Some other anomalies also persist-
1. One stems from retaining the Mitaksara joint property system.
Making
daughters coparceners will decrease the shares of other Class I
female
heirs, such as the deceased's widow and mother, since the
coparcenary
share of the deceased male from whom they inherit will decline. In
States where the wife takes a share on partition, as in
Maharashtra, the
widow's potential share will now equal the son's and daughter's.
But
where the wife takes no share on partition, as in Tamil Nadu or
Andhra
Pradesh, the widow's potential share will fall below the
daughter's.
2. Co-parcenary remains a primary entitlement of males; the law,
no
doubt provides for equal division of the male co-parcener's share
on his
death between all heirs, male and female; still, the law puts the
male
heirs on a higher footing by providing that they shall inherit an
additional independent share in co-parcenary property over and
above
what they inherit equally with female heirs; the very concept of
co-parcenary is that of an exclusive male
membership club and
therefore should be abolished.
But such abolition needed to be dovetailed with partially
restricting
the right to will (say to 1/3 of the property). Such restrictions
are
common in several European countries. Otherwise women may inherit
little, as wills often disinherit them. However, since the 2005
Act does
not touch testamentary freedom, retaining the Mitaksara system and
making daughters coparceners, while not the ideal solution, at
least
provides women assured shares in joint family property (if we
include
landholdings, the numbers benefiting could be large).
3. If a Hindu female dies intestate, her property devolves first
to
husband's heirs, then to husband's father's heirs and finally only
to
mother's heirs; thus the intestate Hindu female property is kept
within
the husband's lien.
Another reason for having an all India legislation is that if the
Joint
Family has properties in two states, one which is governed by the
Amending Act and the other not so governed, it may result in two
Kartas,
one a daughter and the other a son. Difficulties pertaining to
territorial application of Amending Act will also arise. Thus is
the
need for an all India Act or Uniform Civil Code more immediate.
Conclusion
The Preamble to the Amending Acts indicates the objective as the
removal of discrimination against daughters inherent in the
mitakshara coparcenary and thereby eradication of the baneful
system of dowry by positive measures thus ameliorating the
condition of women in the human society.
It is necessary to understand
that if equality exists only as a phenomenon outside the awareness
and approval of the majority of the people, it cannot be realized
by a section of women socialized in traditions of inequality. Thus
there is need to social awareness and to
educate people to change their attitude towards the concept of
gender
equality. The need of the hour is also to focus attention on
changing
the social attitudes in favour of equality for all by enacting a
uniform
law.
The difficult question of implementing the 2005 Act remains.
Campaigns
for legal literacy; efforts to enhance social awareness of the
advantages to the whole family if women own property; and legal
and
social aid for women seeking to assert their rights, are only a
few of
the many steps needed to fulfill the change incorporated in the
Act.
|
Changes brought in the position of women
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The
author can be reached at:
shelly@legalserviceindia.com /
