|
Introduction
The Karta of a Hindu joint Family in Hindu Law is the senior most
member of the family entitled to manage family affairs, in his
absence the next eldest male member after him is entitled to be
the Karta. A Karta is the caretaker of the whole family and looks
after the welfare of all the members of the family. His
relationship with other members is a relationship of trust and
confidence.
At least one
male member is necessary to constitute a coparcenary. But the
question arises that if no male member is left in the family or if
all male members are minors then who becomes the Karta ? or Can a
female member of a Hindu Joint Family become a Karta then in such
circumstances ? this situation makes us rely on various judicial
pronouncements which have dealt with this question. The view of
the judiciary is inconsistent.
Now when a
major step towards ending gender discrimination and to stop the
gender-bias prevalent in families and to improve adverse condition
of women in society has been taken in the form of The Hindu
Succession Amendment Act,2005 . This amendment has conferred equal
property rights on daughters as well. Now the daughters by birth
will acquire rights over coparcenary property.
Earlier women
were not included as coparcenary members, and according to the
Hindu sages only a coparcener can become a karta, and therefore
they could not be the Karta.
But now
because of the changed position of daughters as coparceners the
situation is in favour of possibility of women becoming Karta.
There are diverse views of the Courts on this point.
In our project
we have tried to explain the position of women in relation to that
of a Karta, we have also, by going through case-laws and judicial
pronouncements. Our Project is divided in parts. The First part
deals with historical background. The second part deals with can
women be a karta. The third part deals with arguments for and
against of women as Karta. The Last part is a synthesis of the
arguments advanced ie the conclusion.
Background
Since ancient times 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.
#
Position
prior to the Act of 1956
Hindus were governed by Shastric and Customary laws which varied
from region to region 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 a
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. 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. 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.
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 sub schools of Mitakshara recognised only five female
relations as being entitled to inherit namely - widow, daughter,
mother paternal grandmother, and paternal great-grandmother.
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. 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
nunmber 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.
# During the
British Regime
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.
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.
#
The Indian
Constitution
The framers of the Indian Constitution took note of the adverse
and discriminatory 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 endeavour 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 land.
#
Position
after the enactment of Hindu Succession Act,1955
The Hindu Succession Act,1955 reformed the Hindu personal law and
gave woman greater property rights, allowing her full 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 to the 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 female intestate.
Social justice demands that a woman should be treated equally both
in the economic and the social sphere.
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 as placed women at the receiving end.
#
Position
after the amendment in the Succession Act
The Law Commission was concerned with the discrimination inherent
in the Mitakshara coparcenary under Section 6 of the Hindu
Succession Act, as it only consists of male members. The
Commission in this regard ascertained the opinion of a cross
section of society in order to find out, whether the Mitakshara
coparcenary should be retained as provided in section 6 of the
Hindu Succession Act, 1956, or in an altered form, or it should be
totally abolished. There were other questions involved also, like
should women be karta in absence of male members ? The
Commission's main aim was to end gender
discrimination
which is apparent in section 6 of the Hindu Succession Act,1956,
by suggesting appropriate amendments to the Act. Accordingly, the
amendment was made by the legislature in December 2004 and it
conferred equal property share from the ancestral property on the
daughter. By birth a daughter would acquire property rights and
would be like any other coparcenary.
In the face of
such multiplicity of succession laws diverse in their nature,
property laws continued to be complex and discriminatory against
women. The social reform movement during the pre-independence
period raised the issue of gender discrimination and a number of
ameliorative steps were initiated.
Can Women Be
Karta ?
A questionnaire was issued by the Law Commission to elicit the
views of the public regarding giving of rights to a daughter in
the Mitakshara property of a Hindu undivided family. This
questionnaire consisted of three parts having 21 questions.
Sixty-Seven respondents have replied to the questionnaire.1 30
respondents were from the profession of law and the rest comprise
sociologists, NGOs etc. About the case of Daughter becoming a
Karta in the Joint Family, about half the respondents wanted the
daughter to become a Karta in the Joint Family. The normal
position of law does not give such a right to a women except under
special circumstances. If such a right is sanctioned by law then
what will be the pros and cons ? or why should we sanction such a
right, for what reasons should a women be allowed to become the
manager of a joint family? To answer all these questions we will
have to look into arguments which favour the women becoming a
Karta and the arguments which do not favour such a disposition.
Arguments In
Favour
#
Making her the Karta would make her position more respectable
Despite the Constitution guaranteeing equality to women, there are
still many discriminatory aspects in the Hindu law in the sphere
of property rights. In our society maltreatment of a woman in her
husband's family, e.g. for failing to respond to a demand of
dowry, often results in her death. But the tragedy is that there
is discriminatory treatment given to her even by the members of
her own natal family. Thus, if she is made the Karta of the
family, then all the members of the family will respect her
because of her position and women abuse will be controlled. 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.
#
After The Hindu Succession Amendment Act, 2005 women are
recognized as coparceners.
In the Hindu system, ancestral property has traditionally been
held by a joint Hindu family consisting of male coparceners.
Coparcenary as seen and discussed earlier in the present work is a
narrower body of persons within a joint family and consists of
father, son, son's son and son's son's son. A coparcenary can also
be of a grandfather and a grandson, or of brothers,or an uncle and
nephew and so on. Thus ancestral property continues to be governed
by a wholly partrilineal 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 joint or coparcenary
property. Since a woman could not be a coparcener, she was not
entitled to a share in the ancestral property by birth. A son's
share in the property in case the father dies intestate would be
in addition to the share he has on birth. But after the amendment
daughters have from birth coparcenary rights. So they can be
kartas as they are now recognized as coparcenors.
#
Women are
fully capable of managing a business, taking up public life as
well as manage large families as mothers.
There is still a reluctance to making her a Karta as the general
male view is that she is incapable of managing the properties or
running the business and is generally susceptible to the influence
of her husband and his family, if married. This seems to be
patently unfair as women are proving themselves equal to any task
and if women are influenced by their husbands and their families,
men are no less influenced by their wives and their families.
#
This will
end gender discrimination in Mitakshara coparcenary by including
daughters in the system. Since the girl will be the equal
inheritor of her ancestral property, the in-laws may not insist on
dowry.2
#
It is being
suggested that the family dwelling will not be "alienated" without
her express consent. Thus will make her position stronger. She
will now become a member equal to that as any other male member.
#
Such an act
will spread awareness and increase literacy among women as they
will be involved in family affairs and they will have a say in
business.
Arguments
Against Women Becoming Karta
# Daughters cannot be made karta as
they live away from joint
family after their marriage the daughter-in-laws do not also
originally belong to their in-law’s family, and therefore their
possibility of becoming a karta is also ruled out.
# If women are
made karta then this will lead to involvement of women in business
affairs this will lead to
disturbed
domestic affairs.
# The women of
a house-hold are usually busy with their domestic work, even if
they are made karta they will act on the advice of family members
and in most cases where the woman is illiterate then it will just
lead to idle members of the joint family prospering at the expense
of the hard-working?
# What will be
the
work of the male members if female members of a joint family
are made karta.
# Women are
incapable of managing properties or agriculture, they are incapaable of running a business.
# If women are made karta will they be entitled to any kind of
maintenance ? this the key issue of the problems which is to be
answered.
The Judicial
View
The possibility of female being the Karta in presence of senior
male member is being ruled out. But the question is whether in the
absence of the manager, whether by prolonged journeys abroad or by
dying without leaving another manager to succeed him in his
function, a female could act as a manager. No doubt, it is true
that he can act as guardian of Hindu Minors by the Hindu Minority
and Guardianship act, 1956 but it abstains her from interfering
with the exclusive powers of managers to deal with the interests
of minors in the Joint Family Property.
So, the
solution lies in our religious text which is Dharmashastra. It
says that alienation can be done by the wife of an absent, or the
widow of a dead manager, of family property belonging to numerous
minors, unable to enter into contractual relationships in their
own persons, yet reasonable for maintaining dependants and
carrying the various burdens of the family. Here, the benefit of
the family is the touchestone, not the identity of the alienor.
The acts of a female member acting as a manager should be positive
for the benefit of the Family. Such acts will be binding upon the
manager when he returns or appears on the scene by simply coming
of age as the case may be. It is further supported by Katyana,
Smritichandrika, Bhavasvamin and Yagnavalyka Smriti. Some of the
Sanskrit text says -
"sishyantevasi-dasa-stri-vaiyavrittyakarais ca yat Kutumbahetor
ucchinam vodhavyam tat Kutumbina"
The manager
(or householder, actual or eventual) is liable to accept (or
admit) all alienations made for the purposes of the Family by a
pupil, apprentice, slave, wife, agent or bailiff.
Narada says-
"Na ca bharya-kritam rinam kathancit patyur abhavet Apat
kritad rite, pumsam kutumbartho hi vistarah"
A debt
contracted by his wife never binds the husband, except that
incurred in a time of distress: expenses for the benefit of the
family fall upon males.
Even at this
objection is being raised, ‘Are not women declared by the sastra
to be incapable, or unfit for independence?” Wherever a male
member of the family is available, his signature should be taken
rather than that of any female’s acts. But the answer lies in the
following statement. The women in question is de facto svantantra:
as soon as the husband returns or her son reaches majority she
becomes partantra again, but meanwhile the responsibility rests
with her, and powers should obviously be allowed to her
accordingly.
The Case
Laws- In Support
The Nagpur position
In Hunoomanpersaud’s case3 which was one of the greatest cases in
the history of Hindu Law dealt with the powers of a widow mother
as manager of property of her minor son, and was in reality a case
in the context of manager ship rather than guardianship properly
so called. The test of the lady’s act was not who she was or in
what capacity she purported to act, but whether the act was
necessary or in the minor’s interest as understood by the law.
In
Pandurang
Dahake v. Pandurang Gorle4, there the widowed mother passed a
promissory note for necessity as guardian of her two minor sons.
She was a defacto manager and was held to have managerial powers,
and the sons could not repudiate the debt.
In
I.T Commr.
v. Lakshmi Narayan5, the mother as karta of the undivided family
consisting of herself and her two minor sons entered into a
partnership renewing thereby the partnership which her late
husband had had with his brother. The court said that at Dayabhaga
law woman could be coparcener and so possibly even managers, and
noted that a female might be the manager of a religious endowment.
The Act of 1937 has improved the status of the Widow.
The Madras
Position
In
Seethabai v.. Narasimha6 there the widows claimed that they
were undivided members of the coparcenery by the operation of the
act of 21937. They objected to the appointment of a guardian for
the property of the minors. The court appointed one widow guardian
of one of the minor and a stranger was appointed the guardian of
the other. None of the widows it was held that could be a manager.
To be a manager one must be a pukka coparcener, a male with a
birth right and not a mere statuary interest. In
Radha Ammal v.
I.Tcommissioner,7 Madras a mother , guardian of minor sons ,
purported to execute a deed of partnership admitting a stranger as
a power in the ancestral business. It was held that this was
outside her powers and the deed could not be registered under
section 26(a) of the Income Tax Act 1922. A woman could not be a
manager. The argument that
Hunoomanpersaud’s case8 allowed the act
of a de-facto manager to be binding even if she were a woman, was
not decided, much less examined. This was a weak case in Madras
decision which was in any case strictly formal and anti-Quarin in
approach.
The Bombay
High Court
In
Rakhmabai v. Sitabai9 that a step mother as manager of a Joint
Family consisting of her co-widow and minor step-son and a minor
step daughter and had the power to resist the appointment of a
guardian of the property of the step-son. She was the managing the
estate and her authority should not, it was urged be undermined by
such an appointment. The learned court said that the proper course
was to appoint a guardian for the coparcenery Property. A widow
could not be a manager of Joint Family Property. The case of Seethabai was agreed with.
The Orissa
High Court-
In
Maguni Padhano v. Lokananidhi Lingaraj10, it was held that a
mother, whose husband is alive, cannot be a manager. She might
indeed act as guardian of her son, if her husband was dead and
perhaps as defacto guardian. But as manager she had no powers
whatever. Laxmi Narayan’s case was not followed. The Principle
that a woman could be a manager was decisively rejected.
The Patna High
Court
In
Sheogulam v. Kishun Chaudhari11, the court denied that a mother
of a minor son, during the long absence of her husband , might act
as karta and incur debts for family purposes. All such debts would
not be binding upon the family. The case of Maguni was relied
upon.
On the surface
it might seem that Madras has the best of it. But a further
examination makes us hesitate. The natural desire that deserted
mothers and widows should have ample powers to look after their
minor son’s interest, acting for necessity or the benefit of the
Family, has expressed itself, as things will, in an irregular way,
seeing that it was frustrated in expressing itself in some quartes
in a regular way.
The Minor’s
Manager Mare Nest
Some are also of the view that can a minor be a manager. It is
hardly possible as the word
manager means one who can make an
alienation of property, one who can incur debts that will bind the
family. The word is also capable of meaning the one who handles
the affairs of the family. Internally, domestically, a minor may
well be a manager. But he is not a manager vis-a vis the outside
world.
Conclusion:
Under the Shastric Law, a daughter on marriage ceases to be a
member of the parental family, but the Amending Acts have changed
her position, which is quite alien to Hindu patriarchal notions.
Though her position as defacto manager was recognized when mothers
acted as guardians of their minor sons after the death of their
husbands, the dejure conferment of the right eluded her.
The law
commission also has rightly observed that although the Hindu
Succession Amendment Act, 2005 has conferred upon the daughter of
a coparcener status but there is still a reluctance to making her
a Karta. This seems to be patently unfair as women are proving
themselves equal to any task.
Since they can
act as coparcenaries then they must also be given the powers of
Karta. The shastra is clear that in the absence of senior member a
junior member (if he has reached the age of legal competence) may
incur debts for the needs of the family, and in the absence of a
male member a female member may do so. The Sanskritic texts
empower women to act as Karta in instances like when the husband
is away or missing or the son is yet to attain majority.
Equality for
women is not just a matter of equity for the so-called weaker sex,
but a measure of the modernity of Indian society and the pragmatic
nature of our civilization.
***********
Bibliography
# Basu, Monmayee, Hindu Women and Marriage Law: From Sacrament to
Contract, 2001, Oxford University Press, pg. 121
# Derret, J Duncan,
May a Hindu Women be the Manager of a Joint
Family at Mitakshara Law, 1995, Universal Book Traders, Bom. L.R..,
J., Vol.- LXVIII, pg- 126
# Agarwal R.K, Hindu Law, 19th Edition, Central Law Agency, pg-
298
# Course Material Of VI Trimester
# Law Commission of India report on ‘Property Rights of Women:
Proposed Reforms under the Hindu Law’, May 2000.
# B.Sivaramayya, "Coparcenary Rights to Daughters; Constitutional
and interpretational Issues," (1997) 3 SCC (J), P.25.
# All India Reporters
# Rajya Sabha Parliamentary Bulletin Part II. (No 41884) dated the
27th December, 2004.
# Bhadbhade Nilima , State Amendments to Hindu Succession Act and
Conflict of Laws : Need For Law Reform, (2001) 1 SCC (Jour) 40
# Thomas E.C, The road to gender equality.
# Sethi Lalit, Reforming Property Rights Of Women
URL’S
http://www.thehindu.com/thehindu/mag/2005/09/25/stories/2005092500050100.htm
http://www.millagazette.com/subscribe.htm
http://www.ebc-india.com/lawyer/articles
|
Can Women be Karta?
More
Articles:
The
author can be reached at:
roopa_gargava@legalserviceindia.com /
