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Gender Justice In Hindu Succession

At the time of Vedic and Ancient period, women enjoyed status equal to men. Women enjoyed respect in their family. They considered equal at most of the levels. Like they were also educated, attend assemblies and also had the right to choose their life partner (Swayamwar). When we talk about the inheritance, the women were discriminated. The property of father was inherited by son only.

There was a male dominated society. So, property is mainly or majorly inherited by son. Child marriage is not in vogue. At the time of medieval period, the status of women starts declining and they suffered from many social evils. The Hindu women enjoyed respect in the family. Hindu women also participated in religious ceremonies.

They were educated. Early marriage and Purdah system were effected the education and movement of woman in the society. Educations were only provided to rich because they afford education. The birth of a daughter was regarded as bad omen and that resulted in the female infanticide.

In this medieval period, every Muslim were allowed to keep at least four wives. Purdah system was strictly followed among Muslim women. Muslim woman were devoid of education because of their social custom. They could divorce their husband and remarry.

They can also claim their share in the property of their parents. Overall, the status of woman was declined in medieval period. According to the Aitareya Brahama, Daughter is the source of misery but a son is the protector of the family. We can say that it was a male dominated society. Thus, we can conclude that the position of woman was much inferior to men; they suffered from many social evils at the time of sultanate. The women were regarded as articles of pleasure.

In this article we will discuss about the provision of the Hindu Succession Act including gender justice and equality. In this we will also discuss current status of men and women and also the latest amendments of the act.

The act called Hindu Women's Right to Property Act, 1937. This act came out during the British rule. The objective of the act was to bring equity in the succession law. Earlier women did not have any right in property.

Government has enacted various laws to improving and providing rights to women, to provide property to widow. The Hindu Women's Right to Property Act, 1937 deals with the Hindu Widow Right on her dying husband without any will. In these cases, widows are entitled to share of the property.

Karnataka Hindu Law Women's Right Act, limits the rights of the property to any woman. Where woman do not have any right of disposal of the property by sale by will. This right is called the limited estate. Women had absolute power of the property of disposal either by sale or will (Stridhan).

The Stridhan property includes ornaments, jewelry, gifts, apparel and also property acquire by savings.

Hindu Succession Act

The Hindu Succession Act, 1956 came out with some revolutionary changes in the right of property of women. According to the Section 14 of the Act, only Hindu Female possesses the absolute right of the property. The rights are including unfettered rights of disposal of property or we can say that rights are full of nature.

The Section 14 of the Hindu Succession Act, 1956, covers both moveable and immoveable property. Property acquired by partition, inheritance, purchase, in lieu of maintenance, gift, property acquired by own skills, prescription, arrears or any other manner include Stridhan held by her before the commencement of this act. In short, Section 14 covers property acquired before or after the commencement of the act.

The government also took many initiatives on Coparcenary property. The coparcenary property is the undivided property of Hindu family. The members of this Hindu Undivided Family are called coparcener. They are related to the head of the family and attain rights in property by birth itself. Earlier woman was not a part of coparcener. Thus, there were denied succession to the ancestral property. Many states like Kerala, Tamil Nadu, Andhra Pradesh, Karnataka, and Maharashtra amended the Hindu Succession Act, 1956.

The amendment of the Hindu Succession Act came into effect on 30th July, 1994 in Karnataka. The main objective of the act was to give woman equal status as men and also woman is a part of coparcener's property by birth like son. On the partition, of such type of property woman is then entitled to equal share as that of a son. There are various cases in which ancestral house may be the coparcener house.

In this, houses are occupied by the members of joint family. So, the female member cannot force a partition of such house unless any other male member wants to opt for partition. But unmarried daughter, a married daughter or deserted or separated from her husband, widow is entitled to a right of residence therein.

There is limitation in succession or inheritance of agricultural land for woman. (Daughter, wives etc.). Woman could only inherit property if the same was mentioned in the will, if there is no will; they were supposed to get nothing. If there is no will, property is divided among the some of the interstate. So, it's depends on the will of woman. (Dagadu Balu vs. Namdeo Rakhmaji and Ors).

The Hindu Succession Act Is Valid To The Following:

  1. Any person who is the follower of Hindu religion in any forms or follower of the Brahmo, Prarthana or Arya Samaj.
  2. Any person who is the follower of Buddhists or Sikh religion.
  3. Any person who is not a follower of Muslim, Christian, Parsi or Jew religion. It is very important to prove that any person would not have been governed by the Hindu law.
  4. This Section also explains who shall be measured as 'Hindu', 'Buddhists', 'Jains' or Sikhs by religion.
  5. A child who's both the parents is the follower of Hindu, Buddhists, Jain religion.
  6. A child who's one of the parents is a follower of Hindu, Sikh, Buddhists or Jain religion and the child who is brought up as a member of any tribe, colony, community, family which his parents belongs or belonged.
  7. Any person who convert their religion to Hindu, Buddhists, Sikh.
  8. Any person who re-convert to the Hindu, Buddhists, Sikh and Jain.

A person who fulfills the provision of this act but not a religion by Hindu shall be treated as Hindu. The law of inheritance for Hindu is also a part of the Hindu Succession Act 1956. This law furnishes woman with the privilege to acquire property but not on equal balance with men by and large.

Section 6 of the Hindu Succession Act tells about coparcenary. Mitakashara School of Hindu Law understands a difference between ancestral property and self-acquired property. It perceives the element namely 'coparcenary'

According to the Hindu Succession Act (Amendment) Act, 2005, the meaning of coparcener means:
  1. Become a coparcener by birth in the same manner as son.
  2. Woman had the same right in the property, if she had been a son.
  3. Be treated to the same liabilities bin respect of the property of coparcener as that of son.
There were gender disparities and the framework of Hindu Joint Family was also different. The Hindu Joint Family was mainly a male dominated society. Male was regarded as the leader of the family. So, by the virtue of their birth male member of such a joint family were supposed to inherit the property as well as wealth.

It was difficult for female heir. In this situation, female was entitled to get some part of the property but that was too less as compared to that of a male heir. Second situation, there are four members in a family consists of mother, father and two daughter. If the father was died leaving female heir behind. So, female got property in this. This is a second situation.

The Hindu Succession Act was passed in 2005 September. The objective of the act is to remove the disparity among female inheriting the property in Hindu Joint Family. It is not usual for wedded women to surrender their share in joint family or in the ancestral property in favor of the male member to maintain family bond. If there is any dispute they may challenge such dispute in Indian Courts.

Woman had to face a lot of discrimination in the sector of personal law and there are many gender disparities in the succession act. There are many steps which are taken by the government to promote gender equality. From time to time there is some decreasing point in gender equality. At the time of Ancient Period, woman enjoyed status equal to men. Now every things changes woman participated in all activities and enjoyed status equal to men.

Woman now easily become whatever they want like doctor, teacher, politician and civil servants and so on without any discrimination. The Government of India starts many initiatives to educate woman by providing them free education and education loan to girls under the 'Beti Bachhao Beti Padhaoo Andolan'.

Coparcenary Is A Birth Right

The history of personal laws of India is rooted in India's colonial past. To protect the private realm of the household from British state both Hindus and Muslim personal laws were brought in the early 20th century. At the time of independence both Hindus and Mohammedan laws were largely retained by the Indian Constitution.

Personal Laws

The term 'Personal Law' is defined as a law that applies to a certain class or caste that is based on religion, faith, and culture. As India is a secular country everyone belongs to different caste, religion and believes on different faith and belief. By considering the different custom, religion laws were made. Indian followed law since the Colonial period. In the personal cases, Courts are required to work with the personal laws when issue was not covered by any statutory law.

Sources Of Hindu Personal Law

  1. The four Vedas namely Rig Veda, Sama Veda, Yajurva Veda and Atharva Veda. These all Vedas contained in 'Shruti'.
  2. There are three types of Smritis, namely: - Codes of Manu, Yajnavalkya and Narada. The Smritis are handed down teachings and sayings of Rishis and holy men of Hindu religion and the commentaries written by many historic authors.
Personal laws and customs as recognized by the statutory law regulate the Hindus. These all are related to some legal issues. Legal issues like inheritance, succession, marriage, adoption, coparcenary, the partition of family property, obligations, of son to pay their father debts, maintenance, guardianship and religious and charitable donations.

A religious personal law refers to rules and regulations governing the formation of marriage and dissolution, relation between parents and children, marital property, child custody, inheritance. As India is a secular country, there are many personal religious laws in India.

The status of woman is of great concern as the personal religious laws portray woman in a subordinate position to men.

Gender Justice

There is gender inequality in our personal religious laws. The personal religious laws promote patriarchy. According to the Muslim Personal law, marriage occurs due to the consent of parents and there is no specific age of marriage. It results in early marriage; there is always a lack of education and movement in society. As we all know that in our country, India, if a girl is not educated then parents give more dowry as compensation. Dowry leads to domestic violence. The people declared dowry as good or as a tradition of their caste or family. But now a day it has become the taboo for our society.

There are about 15,000 women who are killed by their husband in dispute over dowry. If we see our last decade dowry death increased about 170% 'What a shameful act'. There are also thousand more cases in which woman are killed by either husband or by the husband's family due to dissatisfied with the dowry that she had brought during marriage. Kitchen Accident � In Kitchen Accident, woman are burned if their parents didn't pay enough dowry or money when the girl got married.

The Hindu Personal Law (Succession)

There have been several changes in law from 19th Century to 21st Century. These laws are related to share of the property to females in Hindu Undivided Family (HUF). 'Karta' is the head of Hindu Undivided Family. From 1860-1937, there was a significant change with respect to the laws for female in Hindu Undivided Family.

The year from 1860 to 1937 called Classical Law Period. In this period, one law was passed which says that no widow had any right to demand partition in property, but the widowed mother received a certain share when there was a partition of property between brothers in the family.

One of the Acts was passed in 1937, with this Act; there was a development in respect for the right of widow in Hindu Undivided Family. It was added in this act that right to partition would also be given to widow. It was also mention in the act that the widow had a limited right and they didn't have the right to alienate the property whenever they wanted to. We can say that this is the first initiative for female to get equal rights in the properties in Hindu Undivided Family.

The next amendment was made in 1956 in the Hindu Succession Act. This is said by expert that it was one of the most significant developments related to the right of property of female in Hindu Undivided Family. Section 6 of the Act contains the list of member who will be first in the line to get property when a partition takes place in a Hindu Undivided Family.

This list called the Class Heirs. In 1956 amendment, the daughter, the mother, and a widow also added in the Class 1 Heir list. It means that from now the mother, daughter and a widow are first in the list to get property in case of partition takes place in Hindu Undivided Family.

Another significant amendment was with respect to the Section 14 of Hindu Succession Act. This Act states that any property which is owned by a female Hindu, whether acquired before or after the commencement of the Act shall be held as she is a full owner of that property not in limited capacity. This was a very big initiative to provide female equal rights with respect to property in India.

Amendment Text (2005)

This is one of the most progressive steps that the Judiciary system of India has taken in the past few decades. This amendment brought various changes in the right of property to woman. This amendment established woman as equal as of men. It is one of the great initiatives taken by the Government of India. Some legal counselor from all over India did their best and work hard for the amendment. There are some changes in the Act.

The changes are:
  1. Section 4(2):
    This Section was omitted from this amendment of 2005. According to the Section, the Act (Hindu Succession Act) shall not override the provision of any other act. This Section creates an inequality among woman by obstruct them to capacitate the land of agriculture.
  2. Section 6:
    The Section 6 of the Act considered the woman as a coparcener. It creates an equal opportunity for woman . And provides woman the right of coparcener. Women are entitled to all the rights and liabilities as a son. The daughter also holds coparcener property after the marriage because they are provided with the coparcener right by their birth itself. So, a woman has equal rights as men in the property of a Hindu Undivided Family.
  3. Section 23:
    This act gave the woman the right of dwelling house. The provision stated that the only the female can dwell who is unmarried, separated and widowed which creates inequality. This Section also amended and the decision was in the favor of female by giving them the right of dwelling house.
  4. Section 24:
    The Section 24 of the act states that if the widow of predeceased brother remarries, then they are not entitled any share in their husband property. That's why this Section was revoke by the Amendment Act 2005.
  5. Section 30:
    In this Section some words added "disposed by him or her" instead of him which these create a right for woman to dispose of her property.

Developing Jurisprudence

  1. Prakash V Phulavati (2016)
    The decision of this case was headed by the Two-Judges Bench. Justice A.K. Goel is the head of the bench. It was held by the bench that daughter will not have inheritance right in coparcenary property if the coparcener (father) is died prior to 9th September, 2005 (the date on which the amendment came into force). So, the benefit of this amendment will only give to "living daughters of living coparcener on 9th September, 2005.
  2. Danamma V Amar Singh
    For daughter to become coparcener, the father need not necessarily be alive on the enactment of Hindu Succession Act, 2005.

    A Two Judges Bench headed by Justice A.K. Sikri has held that daughter could claim coparcenary property even if their father were died before the commencement of the Hindu Succession Act, 2005.

    As these conflicting perspectives were given by the benches of equal strength, it led to the reference to the larger bench of Three Judges in the case of Vineeta Shrama V Rakesh Sharma.
  3. Vineeta Sharma V Rakesh Sharma (2020)
    The Supreme Court agreed with the decision of Danamma V Amar Singh case but disagreed with the decision of Prakash V Phulavati case.

    Since birth daughter are a coparcener so they have their right in the ancestral property in the same manner as son.

According to the World Bank Collection of Development indicators, In India, there are about 48.03% women in India. Mostly, half of the Indian population is woman. "Half of the Indian population too is woman. Women have always been discriminated against and have suffered.

They are suffering discrimination in silence. Self-sacrifice and self-denial are their mobility and fortitude, and yet they have been subjected to all equities indignities, inequality and discrimination" said by Justice K. Rama Swamy.

According to Justice K. Rama Swamy, there is always discrimination with woman in India. As per the particular religion, there are various religion and personal laws. But with this religion personal law there is always discrimination with woman. The civil laws also have better position of woman as comparison with religion personal law. So such discrimination is not mention in civil laws.

Multi religious countries like India which has opted for a democratic and secular state. It is the right of every citizen of India to elect the Government of India by the process of election. It is the duty of the State to provide an optional secular code of family laws.

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