The elements which must co-exist to attract the operation of Section 4 of the
Partition Act are first, that the dwelling house should belong to an undivided
family; secondly, that a share thereof should have been transferred to a person
who is not a member of such family; and thirdly, that the transferee should sue
for partition.In simple words, before 2005 amendment in respect of the provision
of section 23. A bar was there for the woman to apply for the partition of the
dwelling house until the male heir does not decided and filed for the partition
in respect of the same.
The Dwelling House in Hindu Law has traditionally been seen through a
patriarchal perspective. Prior to the Hindu Succession Act of 2008, Hindu women
were not allowed to divide up and claim their portion of the dwelling.
Subsequently, this area was eliminated. However, in a cultural setting where the
Dwelling House is still seen as a place where the son and his family should
live, a simple repeal does not ensure rights. Secular statutes like the Transfer
of Property Act are consequently still interpreted in a concentric manner. The
widow, children, and elderly family members who are the most defenceless are not
adequately protected by this.
Hence, there is a need for a reconceptualization of the dwelling house as a unit
that serves the interests of the most vulnerable. This must be done by analysing
where the laws and the judiciary are failing, as well as by taking a fresh look
at newer social legislations such as the Protection of Women from Domestic
Violence Act, 2005 and the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007.
It is widely acknowledged that one of a person's fundamental needs in life is to
have a roof over their head. This fundamental need is met by a dwelling home,
which is a shared household shared by a family. However, if one were to
critically consider the rights that different family members have historically
possessed in relation to the dwelling house, this straightforward construct
raises a plethora of issues and controversies. The issue that divides the
privileges of male and female family members is the most contentious. The home
we live in is a social construction. Physically speaking, it is identical to any
other property held by people or families.
However, personal laws as well as secular laws have looked at the dwelling house
as an institution that must be protected in the interests of the family. With
'family' itself being un-definable in absolute and uncoloured terms, law has
either been drafted or interpreted in ways that privilege a patriarchal view of
It is argued in this paper that the law inadequately protects the rights of
women, children and the elderly to the dwelling house and that prevalent
conceptions of the dwelling house as an institution to "preserve the family"
must be challenged. An alternative model is proposed, where the dwelling house
is seen as an institution that protects the livelihood interests of the
vulnerable sections of the family, such as the deserted wife, the widow, the
aged parents and the minor children.
A comparison is made with other countries on this front. A significant part of
the paper focuses on Hindu law, as the 2005 Amendment to the Hindu Succession
Act has attempted to bring about a revolution in female heirs' rights to the
dwelling house. Whether this amendment changes ground realities is also a
question that will be considered.
I will also look at the Transfer of Property Act 1882, the Partition Act 1893,
and some provisions of social legislations such as the Domestic Violence Act
2005, and the Maintenance and Welfare of Parents and Senior Citizens Act 2007
while analysing the present patriarchal set-up that the dwelling house has been
tangled in. Primary and secondary sources of information have been referred to,
and a uniform mode of citation has been used.
The term "coparcener" has been incredibly frequently used in reference to Hindu
law and the HUF. A coparcener is a person who has the right to request partition
in HUF property and who gets a right in the ancestral property through birth.
Only male family members were known as coparceners because they had a right to
the ancestral property by birth and had the only right to request partition in
the HUF Property prior to the changes made by the Hindu Succession (Amendment)
Basic concept of dwelling house as per Section 4 of the Partition Act
The following conditions must be met in order for Section 4 of the Partition Act
to apply: first, the dwelling house must belong to an undivided family; second,
a share of it must have been transferred to a person who is not a member of such
family; and third, the transferee must file a partition claim. The fact that the
plaintiff, who was not a family member, had acquired not only a share of the
house but also a share of additional lands, which he attempted to partition in
the suit as it was originally written, does not make the provisions of Section 4
The word 'family' as used in the Partition Act, ought to be given a liberal and
comprehensive meaning, and it includes a group of persons related in blood, who
live in one house, or under one head or management. It is not restricted to a
body of persons who can trace their descent from a common ancestor.
It is not necessary to constitute an undivided sfamily for the purposes of
Section 4 that the members of the family should constantly reside in the
dwelling house; nor is it necessary that they should be joint in mess.
The word "house" includes not only the actual structure or building but also any
nearby structures, the yard, the garden, the court yard, the orchard, and
everything else required for a comfortable occupation of the home�but not items
that are only for the owner's personal use and convenience. It also encompasses
the property on which the dwelling-house is built.
Evidence must be used to decide whether or not a specific parcel of adjacent
land is required for the enjoyment of a house.
Meaning, Effect and essence of partition
Partition is an eventuality in Hindu Joint family through which the joint status
of a family comes to an end. Partition gives rise to new joint families or
nuclear families. For partition, there must be at least two coparceners in the
Hindu joint family because then only there will be a state of jointers amongst
the coparceners which will come to an end by partition. It implies that until
and unless a coparcenary exists in a family, partition cannot take place.
The concept of coparcenary is an innate part of the Hindu joint family property.
Each coparcener has an inherent title to the joint property and all the
coparceners together own the whole property. Partition generally means that
joint ownership has transformed to separate ownership of the individual
coparceners. Thus partition is also defined as "the crystallization of the
fluctuating interest of a coparcenary property into a specific share in the
joint family estate."
The concept of partition is applied with different rules under the two schools
of Hindu law.
Dayabhaga School: Under Dayabhaga School, partition means division of property
in accordance with the specific shares of the coparceners i.e. partition by
metes and bounds.
Mitakshara School: Under Mitakshara School, partition not merely means division
of property into specific shares. It basically means severance of joint status.
Essential of coparcenary is important but existence of joint property is not
essential for demanding partition. It is a law by which the joint family status
terminates and the coparcenary comes to an end. All that is necessary to
constitute a partition is a definite and unequivocal declaration of the
intention by a coparcener to separate himself from the family.
Effect of Partition
Partition leads to separation from the joint family. After partition, a person
is free from the rights, duties and responsibilities towards the joint family
thereof. On partition the shares of the coparceners get defined and stop
fluctuating further due to births and deaths in the family. Property acquired by
a coparcener after partition is treated as his self-acquired separate property
which devolves by succession.
Essence of Partition
Partition must not be confused with the de facto division of property and
allotment of the shares. Partition by metes and bounds is not mandatory
ingredient for completing the process of partition. The physical division of the
property affects the mode of enjoyment and management only and not the nature of
its tenure. Strictly speaking, a partition is said to be completed the moment
the severance joint status takes place.
Types of Partition
Coparcenary is a creature of Hindu law. The concept of coparcenary encompasses
community of interest and unity of possession. Each coparcener's right extends
to the whole joint family property; though each one of them has an interest in
the whole family property, he has no definite share therein. Partition can take
place in two ways:
De jure Partition: When the community of interest is broken or divided and
converted into a fix share leaving no scope for the application of doctrine of
survivorship, this type of partition is known as de jure partition or in other
words, the severance of the joint status.
De facto Partition: Unity of possession can be maintained even after a severance
of joint status. The shares might get fixed but no coparcener can claim any
property as falling into his exclusive share. It is not clear that which
property will go to which coparcener. When this unity of possession is broken by
an actual physical division of the property and replaced by exclusive
possession, it is called as de facto partition or partition by metes and bounds.
Dwelling house: If we consider the ancient view, the dwelling house should not
partitioned. But according to the modern perspective, the law does not consider
this ancient rule as sacrosanct. A partition of a dwelling house can be done
through a decree by court. The court will put all its effort to make such an
arrangement so that all the coparceners are equally benefited. If the court
fails to make equitable agreement, the dwelling house will be sold and the value
will be divided equally among all the coparceners.
The Partition of Property
Voluntary partition involves a written agreement through which the property is
relinquished a co-owner. All the property's owners must be involved and all must
sign the agreement. If there's no way to achieve the partition on a voluntary
basis, a judge will have to order it.
If a court orders a sale, no co-owner can call it off - although owners are
allowed to bid on the property if it goes through a sheriff's sale. The court
may have provisions for owners to bid using credit based on their vested
interests in the property.
But a forced partition action is contentious and costly and long. It's best
avoided. A court-ordered sale is unlikely to happen at the optimal time for
anyone. It will involve steep legal fees and, probably, a low sale price. If
there's a mortgage, the owners will still have to pay whatever part of the loan
the sale proceeds don't cover.
If it's impossible for the co-owners to work through their differences, then the
county court must effect a partition. Because the law does not want to force a
person to co-own property who doesn't want to, the partition should be granted
if the plaintiff meets the state criteria.
There are very few exceptions to this general rule. In rare cases, a provision
in a will could bar partition, or a written agreement could exist in which the
co-owners expressly agreed not to partition the property. But if there are no
exceptional situations, a court should grant the partition.
There are two ways for the court to order the partition.
A partition in kind (actual partition) divides the actual property among the
multiple owners. The court may forgo appraisals, assess the property's value,
and assign the parties a specific portion of the parcel. Then, the individuals
record their portions as their own properties with the county recorder of deeds.
Of course, it can be difficult to divide real estate into equal sections.
Moreover, it can leave the people holding parcels right next to each other �
people who disagree so strongly that they just had a major showdown in court.
The alternative is the partition by sale. State law typically states that
partition by sale should happen it the actual parcel cannot be split up without
substantial detriment to anyone involved. In this case, the court will order a
sale of the entire property sale, possibly on the open market, but typically at
a sheriff's auction. Sale proceeds will be distributed to the owners, and taxed
just as other real estate sales would be.
Expect the court to request surveys and appraisals if the property will be sold.
In any case, the co-owners will need to show an accounting of their income from
the property and any contributions they have made to the mortgage debt, the
insurance and taxes, and the repairs and improvements, to ensure a fair
distribution after partition.
Hindu Succession Act 1956
Generally succession refers to succeeding or following but in the context of
hindu succession act it means succeeding or passing of rights of property from
one to another.
Hindu succession act, 1956 enforced and enacted from 17 june,1956. Also
amendment has been done in 2005 as Hindu Succession amendment act 2005
introducing the concept of notional partition (daughter rights under succession
of property). Under Hindu law, there are four types in which property among
Hindu being divided.
- Joint Family Property (Concept Of Karta And Hindu Undivided Family)
- Separate Property (No Ancestral Property)
- Testamentary Succession (Will)
- Intestate Succession (Without Will)
But, under Hindu succession act 1956 act it deals with the rules and
regulations relating to intestate succession among Hindus.
Right of dwelling house of a Hindu - Hindu succession act 1956
Dwelling house meaning:
Generally, Dwelling house means a place where a person has to be regarded as his
fixed permanent home to which whenever he is absent, he has the intention of
returning moreover a place where he used to live from long time or we can say a
There is no specific definition of the expression dwelling of house and is not
described and explained anywhere than in section 23 of Hindu succession act
In Fatime Begum v. Sakina Begum
, the allahabad high court in their
decision held that the Dwelling or Residence both the words are synonymous with
Home or Domicile.
In Commissioner of Income Tax v. K.S. Ratnaswamy
[1980 (2) SCC 548 at
553] the court quotable saying,
The expression "dwelling place" means "residence", "abode" or "home"
In other words, a place where an individual is supposed to live and sleep.
In Ford v. Barnes case
It is being described that the word "inhabitant" would seem to bring about more
fully the meaning of the word dwelling house.
Before Amendment of 2005 Under Hindu succession act it defines:
Section 23 of the Act
- 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.
- In simple words, before 2005 amendment in respect of the provision of
- A bar was there for the woman to apply for the partition of the dwelling
house until the male heir does not decided and filed for the partition in
respect of the same.
In respect of the dwelling house as per section 23 a daughter was not entitled
to file a suit for partition in the absence of any partition suit filed for
dwelling house by a son or any male member of the joint family.
However, the prior provision of the section 23 did not lead to the contrast that
female heirs deny the right to claim partition in respect of the dwelling house
but their right is postponed till the male files the suit for partition.
After amendment to Hindu succession act in 2005
- Hindu Succession (Amendment) Act,2005 (39 of 2005)
- The act came into force-9.september.2005
- The act is prospective in nature.
- After coming into force of Hindu Succession (Amendment) Act, 2005 (39 of
- The amendment came up with the procedure referring that it does not
create any substantive right in claiming the relief of partition in respect
of the dwelling house
- Further As being procedural in nature therefore same can be applied even
to a pending suit
- The amendment with the omission of section 23 from the act generates
certain rights that is being given to female members in the ancestral
A female member is entitled to claim partition even in respect of the dwelling
house even in the absence of any partition suit filed by the male member.
For example: daughter to claim partition in respect of the dwelling house even
in the absence of any partition suit filed by the son
Therefore, having regard to the omission of Section 23 of the Hindu Succession
Act, 1956 by the Hindu Succession (Amendment) Act,2005 (39 of 2005) the bar
which was operative against the female members to claim partition of the
dwelling house was removed
The female members are entitled to claim partition in respect of the dwelling
house also along with other members
Section 23 of the Hindu succession act 1956 defined as When a Hindu male dies
without will and has left surviving both male and female heirs specified in
class I heirs and his or her property includes a dwelling-house wholly occupied
by members of his or her family then the right of the female heir to claim
partition of the dwelling-house shall not arise until the male heirs decided to
file suit for partition to divide their respective shares but with amendment of
2005 of Hindi succession act.
The section 23 with giving right to female in ancestral property deleted the
provision in regard to the section 23 of the Hindu succession act which resulted
that female heirs have right to claim partition without the bar of whether the
male heir choose partition or not.
Locating The Dwelling House In Hindu Succession Law
In classical Hindu Law, the widow and the daughter did not receive any property
through succession or survivorship. With a few exceptions such as in the Bombay
state, women only received a 'limited estate'. This meant that they could enjoy
their portion of the property to a certain extent, but upon their death, it
would go back to the next heir of her husband or father. Section 14 of the Hindu
Succession Act, 1956 changed this by conferring full heritable capacity on
Hindu society was largely exogamous, which meant that daughters in the family
commonly married outside the village to a different family. Hence, it was feared
that granting female heirs absolute rights in her natal dwelling house would
result in uncomfortable situations where the daughter's 'new' family could
partition and reside in the dwelling house.
Therefore, although the Hindu Succession Act gave female family members
inheritance rights, Section 23 of the Act limited these rights with respect to
the dwelling house. According to Section 23, where a Hindu intestate leaves
behind him a dwelling house with both male and female heirs, the female heirs
may not ask for partition of the house until the male heirs choose to do so.
Additionally, the female heirs may be granted a right of residence in the
dwelling house only if she is unmarried, has been deserted or separated from her
husband, or is a widow. This provision was also justified by the fact that the
property of married women was largely controlled not by them, but by their
husbands (who are usually complete strangers to the woman's family in an
exogamous setting), and disruptive influences would operate if he can effectuate
a partition in his wife's family dwelling house.
In patriarchal societies, the death of the male "head of the family" often
renders the remaining members helpless and destitute. It cannot be denied that
an impartible dwelling house therefore serves as a vital form of protection for
the widow and children of a deceased Hindu male. It has been reiterated in
various Court decisions that S. 23 of the HSA must be interpreted keeping in
mind the importance of preserving the institution of the dwelling house.
But in Narasimha Murthy v. Susheelabai
, the Supreme Court made it clear
that the objective behind this section was really to privilege the comfort of
male heirs over female heirs. It was held that the object behind S. 23 was to
"prevent the fragmentation and disintegration of the dwelling house at the
instance of the female heirs to cause hardship to the male heirs in occupation
of the house".
This leads to two situations which demonstrate that Section 23 was more about
reinforcing female subordination than anything else. First, when a Hindu man
dies leaving behind a widow and daughters, some married and others unmarried;
the married daughters can ask for partition7 as there are no male heirs who will
be inconvenienced. This will clearly inconvenience the most vulnerable members
of the family, but is not addressed by the section. Second, the son of a
predeceased daughter may ask for partition.8 Even though the property devolved
to him from his mother in the first place, this gives him a right that his
mother never had.
The other discriminatory aspect of S. 23 is that it provided rights of residence
only to unmarried, deserted, separated or widowed daughters. This, again as a
consequence of exogamous marriage practices, legitimized the belief that married
women are not a part of their natal families. Such a practice only ends up
justifying the differential treatment of male and female children in the
household, as the girl-child is seen only as a liability and a 'temporary'
member of the family. While it is important for laws to respect customary
beliefs and practices, the law should not ideally be reinforcing a custom that
has lead to the systematic discrimination of a section of the population.
In the 174th Report of the Law Commission of India, it was recommended that
along with making women coparceners in ancestral property,9 S. 23 of the Hindu
Succession Act must be deleted.10 These changes were subsequently made in the
Hindu Succession Amendment Act, 2005. Hindu females now formally enjoy an equal
right to partition their ancestral home.
The question of right of residence is not mentioned in the Act, but it can be
presumed that all daughters, regardless of marital status, now enjoy equal right
of residence in their natal homes. While this move is commendable, it must not
be given more credit than is due. The changes in law may formally grant women
rights over the property, but these rights are meaningless without the option of
exercising the rights and the ability to control any property she may receive.
Cultural norms have an important role to play in determining the efficacy of a
law. Presently, dominant Hindu cultural norms are still patriarchal, where women
'leave' their natal families on marriage, which may make the woman herself
believe that she does not 'belong' to her natal home after marriage.
The norm of the bride's family paying dowry at the time of marriage also has a
role to play in a woman not exercising her right over her natal property, as
male heirs may argue that she has already taken her "share" of the family
wealth. This is reinforced by sexual norms which mandate that being feminine
implies being sacrificial and passive to the interests of male care-takers. The
sum total of this complex set of norms is that a woman will often not claim her
share of property from her natal home, and when she does, it is often not out of
her own volition as much as the volition of her husband or his family. The
ultimate consequence is that the dwelling house is an institution that primarily
protects the already powerful (male) members of the family.
S. 44 OF THE TRANSFER OF PROPERTY ACT & S. 4 OF THE PARTITION ACT
Apart from the above analysis of succession laws and gender roles, the
conclusion that the dwelling house is an institution that primarily serves
patriarchal interests can also be reached from another angle - by looking at the
secular laws of property and partition. S. 44 of the Transfer of Property Act
prevents the intrusion of strangers into the family residence when a share in
the house has been transferred to a stranger.
In such cases, the 'stranger' may not claim joint possession or any common or
part enjoyment of the house. His remedy is to file a partition suit. When such a
suit for partition is filed, if a member of the family is willing to buy the
third party's share, S. 4 of the Partition Act mandates that a sale be made to
It is evident that these provisions of law that 'family' is considered an
important institution to preserve. However, neither section defines what family
is, paving way for the judiciary to interpret what it thinks a family should be.
Before the Hindu Succession Act was enacted, the judiciary consistently took a
liberal stance of interpretation. In the year 1929, in the case Pakija Bibi
v. Adhar Chandra
, it was contended by the petitioners that two sisters
living together cannot constitute a 'family' under Section 44 of the Transfer of
Property Act, as they are not a Hindu undivided family.
The Calcutta High Court held that family need not mean a Hindu undivided family-
any persons living under one roof under one head or management can constitute a
family. In 1930, in Mantripragada Sivaramayya's case
, a family had
formally partitioned the dwelling house, but were still living together under
one roof. When a third party who was transferred one-third of the property sued
for partition, the Madras High Court gave the family the benefit of S. 4 of the
Partition Act. It was held that the phrase 'undivided family' is sufficiently
ambiguous to justify the construction that is most in consonance with the object
of the Act.
However, almost fifty years later, after the Hindu Succession Act, Ram Bilas
Tewari's case came into consideration before the Allahabad High Court. The
dwelling house in question belonged to Ram Bali, who before his death had
executed a gift deed in favour of this daughter Mahdei. On Mahdei's death, the
property devolved to her mother, Mangla.
On Mangla's death, it devolved on to the remaining two children, Ram Charan and
Saheb Dei. After Ram Charan's death, Saheb Dei sold her share of the dwelling
house to a third party, Ram Bilas Tewari. Shiv Rani, a widow who resided in the
house, claimed protection under Section 44 of the Transfer of Property Act.
Here, the Allahabad High Court took a narrow interpretation of "undivided
family" to hold that the lone surviving widow cannot claim protection as she is
not an undivided family. Such an interpretation is problematic, as the objective
behind Section 44 is to protect residents of a dwelling house. A narrow view
such as the one taken by the Allahabad Court fails to protect the widow, who is
the most vulnerable dweller of the house.
A similar view was taken by the Calcutta High Court in the year 1984, in
Dhirendranath Sadhukan. Here, a woman lived with her husband and his brother. On
the death of the husband, the brother sold his share to a third party. When the
third party claimed joint possession, the widow, again, was not granted the
protection of S. 44. It was reasoned that there was "no common bond or cementing
factor bringing both of them (the widow and her brother-in-law) within the fold
of an undivided family".
There is also conflicting authority regarding whether Section 44 creates a
positive right for members of the family to evict a third person. It appears
intuitive that without such a right, S. 44 would serve no purpose. While Courts
have recognized such a positive right in some decisions, in Jogendra Nath
Mondal v. Adhar Chandra Mondal
, the Calcutta High Court differed and held
that a co-sharer can grant amicable possession to another co-sharer who is a
stranger to the family, and the family members cannot restrain the third party
from enforcing his possession. This virtually renders S. 44 an empty provision,
as the implication is that once the stranger has already taken possession of the
property, the family has no remedy.
It is found that when such a narrow interpretation of the law is taken, S. 44
does little to protect vulnerable members of the dwelling house such as the
widow or the daughter. One can take advantage of such a lacuna in the law to
drive out widows from their marital homes, either by seeking joint possession or
by partition. This is unfortunate, as given the societal stigma around widowhood
that still persists in India; a house to live in is of utmost importance to the
Therefore, there is a great need to re-conceptualize the dwelling house as an
institution that performs the important social function of protecting vulnerable
members of the family. If the law and the Courts keep in mind such a framework,
some headway can be made in detangling it from a patriarchal set-up.
Re-Conceptualizing The Dwelling House- Protecting The Vulnerable
So far it has been demonstrated that though the gender discriminatory Succession
Law has been struck down and that existing partition law is prima facie gender
neutral, the notion of the Dwelling House remains mired in a patriarchal
understanding of what constitutes a family.
Such an understanding, in turn, creates pockets of power and vulnerability
within units of the same family. However, recognizing that a generalization of
certain members of the family as de-facto vulnerable would reinforce gendered
stereotypes, it is important to unpack the concept of vulnerability itself. The
'dominance' approach, propounded by noted feminist scholar Katherine Mackinnon,
provides some insight in this regard.
Gender neutrality of a law can ignore deeply-rooted power structures in two
ways: by emphasizing on 'sameness', or on 'difference'. Under the 'sameness'
standard, the law would assume that all categories of people are equal and
prescribe the same rules for them. The striking down of S. 23 of the Hindu
Succession Act to make it 'gender neutral', ignoring existing cultural norms
that make its applicability near-impossible is an effect of such a standard. The
problem with the sameness standard is obvious, as demonstrated earlier in the
Under the 'difference' standard, the law recognizes the innate differences in
different categories of persons and makes special provisions for such persons.
Affirmative action is born out of such a standard. Allowing for legal reform in
the law of the dwelling house to protect the widow, for example, would be a
manifestation of the 'difference' principle (it recognizes that widows are
specially placed, as opposed to widowers). However, a legal recognition of such
an inherent difference reinforces stereotypes and harmful cultural norms about
women and their vulnerability
To avoid the pitfalls of either approach, Mackinnon propounds the 'Dominance'
approach, which constructs vulnerability not on preconceived categories, but
based on the distribution of power. Cultural norms in a Hindu family reproduce
power in familiar patterns- a male 'head' of the family, dependent spouse,
children and elderly parents.
However, a dominance approach to analyzing vulnerability can also be expanded to
protect other persons as well, such as Tran's members of a family, partners in
homosexual relationships, etc. With respect to the Dwelling House, reform in the
law must recognize the mitigation of the suffering of vulnerable persons seen
through the lens of dominance. In this regard, three approaches are analyzed:
the homestead model, a re-reading of social legislations specifically meant to
protect women and the elderly, and existing rent-control law.
From an analysis of Hindu Succession Laws as well as the secular Transfer of
Property Act, it is evident that the law around the dwelling house is currently
tangled up in a patriarchal conception of family and women's autonomy. The
consequence of this is that on the death of the male 'head' of the family, the
dwelling house does not serve the vital function of protecting vulnerable
members such as the widow, the daughter and the aged parents.
The 2008 amendment to the Hindu Succession Act repealing Section 23 tried to
undo this patriarchy. The move is welcome and commendable, although its efficacy
is hindered by the juxtaposition of prevalent cultural and sexual norms that
dictate women's attitudes towards claiming their share of property.
Hence, apart from waiting for the elusive organic change to take place in
society, there are some other measures that the Legislature and the Courts can
undertake so that laws reflect non-patriarchal attitudes. Laws relating to the
dwelling house must be interpreted with the object of protecting those members
who have the most to lose if they lose their rights over the house, rather than
with the object of preserving vague notions of family.
Two ways to do this have been suggested. First, the patriarchal, narrow view of
"family" that Courts have adopted while interpreting Section 44 of the Transfer
of Property Act must be changed.
Second, law and policy must consciously work towards securing the interests of
the most vulnerable members of the family. This can be done by taking lessons
from the homestead model that is followed in the West, and by a creative reading
of social legislations such as the Domestic Violence Act and the Senior
Citizens' Act. The Rent Control regime in some states also provides useful hints
on how vulnerability is to be constructed, as it provides tenancy rights to the
dependent family members upon the death of the tenant.
Award Winning Article Is Written By: Mr.MD Rezaul Haque
Authentication No: OT328722623552-14-1023