WOMEN PROPERTY RIGHTS & COMPARISON BETWEEN HINDU, CHRISTIAN AND MUSLIM. “Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.” -Mahatma Gandhi. “ I raise up my voice not so I can shout but so that those without a voice can be heard, we cannot succeed when half of us are held back.” -Malala Yousufzai INTRODUCTION The seed for personal law was sown by the British with the Bengal Regulation of 1772 providing that in disputes relating to family like inheritance, marriage, divorce, adoption etc, the courts should apply the laws of Quran with respect to Muslims and for Hindus, the Shastric law. As far as Christians were concerned, there was no specific law for them. Hence disputes were settled as per English principles of Justice, Equity and Good conscience. The British policy of non-interference with the personal laws of different communities took its deep roots in the communities and the Government of India has been continuing the policy of non-interference even though it has ratified the CEDAW convention. So the Constitutional mandate of Uniform Civil Code under Article 44 of the Constitution went into oblivion. Thus there is need to examine the property rights of Hindu and Muslim women in their personal laws. An attempt has also been made to compare the inheritance rights of women in their respective personal laws. There need to highlights the drastic reforms brought about in the Hindu women’s right to property by the Hindu Succession (Amendment) Act 2005 that conferred birth right to Hindu women in the Mithakshara joint Hindu family property. The property rights of Muslim women are also analyzed to bring forth the disparity in the property rights of women belonging to Communities. I. HINDU WOMEN’S RIGHT TO PROPERTY IN THE PRE-CONSTITUTIONAL PERIOD 1
A Hindu woman, whether a maiden, a wife or a widow has never been denied the use of her property. Even in Manusmriti one can see that right to hold property had been respected. Jurists like Yajnavalkya, Katyayana and Narada further promoted the concept of women’s right to property. Women’s property rights improved and defined during their time. The Smritikars created a unique type of property to women, the stridhana. Since ancient times stridhana was treated as women’s separate property. Jimutavahana went to the extent of stating that woman has absolute control over her property even after marriage. The ornaments, the wealth she receives at the time of marriage from her father and relatives constitute her share. The gifts from her own and husband’s family would also be added to her own. It was Gautama Dharmasastra who first called women’s property as Stridhana share. Mayne also opined that the original bride price payable to the parents appears to have become transferred into the dowry for the wife. Apart from this stridhana, a married woman could receive gifts from strangers; she could also make her own contributions by doing other skilled labor. Yet she had no absolute control over her property because her right to dispose of the property is restricted.This was done to control her. If there was no control, she would become independent . So it is clear that women did not enjoy property rights in the ancient period. Yet woman was allowed to keep her Stridhana as her separate property. Manu also followed the tradition of Gautama and recognized seven forms of stridhana that consisted of gifts from relatives, (1) gifts before the nuptial fire (adhyagni), (2) gifts during bridal procession to her husband’s house (adhyavahanika) (3) gifts of love from father-in-law and mother-in-law (pritidatta) and gifts made at the time of obeisance at the feet of elders (pada vandanika) (4) gifts from father (v) gifts made by her father, mother and brother (5) gifts received from her husband’s family and father’s family after marriage (anvadheyaka) (6) gift on supersession (adhivedamika). A present made to a wife on her husband’s second marriage. (7) Gift by bandhus (bandhudatta) the gift made to her by her father’s or mother’s relations. The property she obtained before marriage or after marriage from her father’s and husband’s family constitute saudayika stridhana. A woman was given absolute right over 2
her properties in the sense that nobody including father, mother, brother, husband and son can take the property away from her. In case if the husband had borrowed from her, he had to repay it with interest. Hence it sets out a warning that the male members should not touch upon the property of the women. The property earned by her through her own skills was classified as asaudayika stridhanam on which husband has control. This was also formed her separate property. The only difference was that before disposing of it she had to obtain husband’s consent. With regard to enjoyment of her property she was absolutely free. 1. WOMEN’S PROPERTY RIGHTS UNDER CUSTOMARY LAW IN THE SOUTHERN INDIA
Certain customs existed in southern part of India among the Dravidians to give a piece of land to the bride. The daughter can take this income and use it for her own daily needs. This constituted her stridhanam and it was passed on to the daughter by the mother. The land was named as ‘manjalkani’. This would enable her to have an income for her needs especially to purchase turmeric and vermilion after marriage. Similarly a custom of handing over 1/3rd of the property by the husband existed when he remarries. It was called patnibhagam. In coastal Andhra Pradesh also a custom of giving land to the daughter at the time of marriage existed. It was termed as Katnam. The peculiar feature of this practice was that women could exercise control over this property even after marriage. In the same way 12% of the Karnataka Vira Saiva women also inherited property from the mother which would be passed to the successive generations for daughters. It is pertinent to note that women inherit this property where as even a boy could not inherit it. The Sudra women from Dharwar region also enjoyed property rights. In spite of all these women’s right to property her freedom was restricted by way of non- participation in decision making especially in financial matters and that it is a patriarchal concept. 2. WOMEN’S PROPERTY RIGHTS IN THE PATRIARCHAL FAMILY
A Hindu father in patriarchal family enjoyed absolute power just as the Roman father in ancient Rome. The scriptures undoubtedly contributed much to make the father, 3
the head of the family a despotic ruler. Manu said that three persons, a wife, a son and a slave are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong. Similarly Narada held the view that a son could be independent only if his parents are dead; during their lifetime he is dependent even though he is grown old. So in a patriarchal family women and children did not have property rights. The wife was put into the group of chattels and slaves. They had an oppressed and subjugated life in the traditional patriarchal families. Widow’s Estate A Hindu Joint family consists of males and females. The married and unmarried daughters continued to remain as members of the joint family. The male members are coparceners with right of survivorship. The rules for survivorship had been laid down by Narada. He said that if among several members, one childless dies or becomes a religious ascetic, the other shall divide property excepting stridhanam. So widows are excluded from survivorship. However this old rule has been repealed by the Women’s Right to Property Act 1937. As per the Act the interests of male coparceners devolve on their death upon widows. This constituted Hindu women’s estate. They were entitled to get their share by Partition. This legislative reform was brought out by the British to improve the status of widow. Following the abolition of Sati the number of widows increased. In order to relieve them of their miseries the Hindu Women’s Right to Property was enacted to confer property rights to them; she could enjoy the property during the lifetime. Her legal status had been improved. She no longer had to depend on the husband’s family for her maintenance. The object of the Act was to introduce equality between men and women. In fact clause 3 of the Bill provided that no person should be excluded from inheritance and partition on the basis of sex. However when the Act came into force women were granted only a limited right of inheritance the widows estate. It was found that the 1937 Act was inadequate to protect the interests of Hindu women and a committee was appointed to prepare a comprehensive Hindu Code. 4
b.GENDER EQUALITY: REFORMS IN HINDU LAW
The history of Hindu Law reform starts with the Hindu Law committee (Rau Committee) set up in 1941. It was followed by second Committee in 1944. The committee finally submitted its report to the Federal Parliament in 1947. The recommendations of the committee were debated in the provincial Parliament. There was strong opposition against the introduction of monogamy, divorce, abolition of coparcenery and inheritance to daughters from the orthodox Hindu community. The Congress legislator from West Bengal argued that only women of the lavender, lipstick and vanity bag variety were interested in the Bill. There were also fears among the orthodox Hindu men that if women were given property rights families would breakup. In 1948 there was an All India Anti- Hindu Code Convention. It was argued that the introduction of women’s share would result into disintegration of Hindu family system which had been working as a co-operative system or ages for preservation of family ties and property. It was also pointed out that the inclusion of daughter in the line of inheritance is due to European influence. Although the top male congress leaders opposed the Bill, Jawaharlal Nehru and Dr.Ambedkar were committed to the Bill. Nehru personally believed in women’s claims to equal property rights. Dr.Ambedkar had to struggle much due to the strong resistance from the citadel of upper caste Hindus. In spite of the initial set back the Congress party could enact four separate Hindu Codes. The most contested area was women’s property rights. As far as the State is concerned unification of Hindu Law was paramount rather than women’s inheritance rights. This is reflected in the words of Archana Parashar. She said that the hidden agenda was unification of the nation through uniformity in law. Establishing the supremacy of the State over religious institutions was another important consideration. This could be best achieved by re-defining the rights of women.There was strong opposition among the congress itself against conferring inheritance rights to daughters. Consequently the coparcenery system under the Mitakshara law was left untouched. As a result women were denied rights in the ancestral property of a Hindu Joint Family. Only male members could become coparceners and property devolves on them through survivorship. Women 5
are totally excluded from inheritance. So inequality continued in the matter of property rights even after the commencement of the Constitution. The daughters had equal rights only in the separate or self acquired property of their father. However the father can easily disinherit a daughter by executing a Will. Section 30 of The Hindu Succession Act 1956 provides that any Hindu may dispose of by Will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act 1925. Wills were wholly unknown to Hindu Law according to Mayne. He says that there was no name for them in Sanskrit or vernacular language. He is of the opinion that Wills were brought to India during the Mughal rule and later by the westerners35. So the English concept of testamentary succession found its way into Hindu Succession Act 1956 by making section 57 of The Indian Succession Act 1925 to Hindus also. However the legislators ignored the protection granted to the family members under the “Inheritance (Provision for family and dependents) Act 1975 in U.K36. During the Parliamentary debates, these lacunae were brought to the notice of those who were vehemently opposing women’s inheritance that it can be circumvented through testamentary disposition. 3. HINDU WOMEN’S PROPERTY RIGHTS UNDER THE HINDU SUCCESSION ACT 1956
Women’s right to property has been substantially improved by the Hindu Succession Act 1956. The concept of women being entitled to a limited estate when they acquire property by inheritance is abolished and women are entitled to an absolute estate like men when they inherit any property. Again the daughter of a predeceased son and the daughter of a predeceased daughter are raised to a higher rank. They became Class – I heirs and get a share along with the son, and other Class – I heirs. The daughters are included in the Class – I in order to remove the discrimination on the basis of sex. Similarly succession to a women’s property or stridhanam of whatever nature is made uniform irrespective of the nature of stridhanam. In the same way the distinction between male and female heirs in the case of succession has been taken away and now they are
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treated on equal basis if they belong to the same degree of relationship. Women will no longer be disinherited on the ground of unchastity. Under Section 14 of The Hindu Succession Act 1956, the limited interest of Hindu female is converted into absolute rights. If she gets property from her husband she can sell it and the purchaser gets absolute right in the property. Under this law family members are entitled to inheritance legally. Formerly she was not given the power of alienation.The provision has been given retrospective effect. Consequently the limited estate becomes absolute. Another important change brought out is to the explanation Section 6 of the 1956 Act. Upon the death of a coparcener the property devolves upon his mother, widow and daughter along with his son by testamentary or intestate succession and not by survivorship. This rule confers on the women an equal right along with the male members of the coparcenary. It is to be noted that Section 6 still retains the Mitakshara coparcenery excluding women from survivorship as a result father and sons hold the joint family property to the total exclusion of the mother and daughter despite providing a uniform scheme of intestate Succession. The stringent restrictions under the Shastric law on female inheritance were finally taken away by the Parliament to make it conform to the Constitutional mandate of equality. The disability of women in inheriting the father’s property was undone under Section 6 of the 1956 Act. Similarly section 15 is the first statutory enactment that deals with succession of Hindu female’s property when she dies intestate before the Act the property of women dying intestate was governed by customary Hindu law. She had only limited interest which would be terminated on her death. It is heartening to note that the Act provides two different laws based on the sex of the intestate. This double scheme is the traditional method intended to protect the family property. The property of a female Hindu dying intestate shall devolve according to the rules set out under section16. (a)Firstly sons and daughters (including the children of any predeceased son or daughter) (b) secondly upon the heirs of the husband thirdly upon the mother and father (d) fourthly upon the heirs of the father and (e) lastly upon the heirs of the mother. Again (a)any property inherited by a female Hindu from her father or mother shall devolve in the absence of any son or daughter of the deceased(including the children of 7
any pre deceased son or daughter)not upon the heirs referred to in sub section (1) in the order specified there in, but upon the father.(b)So also any property inherited by a female Hindu from her husband or from her father –in –law shall devolve in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter)not upon the other heirs referred to in sub section1 but upon the heirs of the husband. This separate scheme of succession reflects a strong patriarchal and orthodox outlook. Further Section 15(2) provides that the property inherited from the father would revert to the heirs of the father when the Hindu female dies without issues. The section also provides that the property inherited from the mother would revert to the heirs of the father and not to the mother’s heirs. The Legislative intent of conservation of property becomes questionable here because if the object is to conserve the family property, the property inherited from the mother should revert to the mother’s heirs. A similar situation occurs in the Christian families where daughters are denied property rights on the ground that it would result into disintegration and fragmentation of family property. The Judiciary has also played a significant role to widen further the scope of Section 14 of the Hindu Succession Act 1956. In Tulsamma v. Sesha Reddy, the Supreme Court observed that the shackles placed on the Hindu women over her property have been broken by this Act and her status has been brought on par with men. In the instant case the trial court decreed the suit on the ground that the appellant had a limited interest in the property allotted to her by the respondent, her deceased husband’s brother. The appellant was entitled to maintenance out of the joint family property when she leased out her property. The respondent filed a suit for a declaration that she had no absolute right over the property. Instead her right was only a limited interest. The contention of the appellant that she had become the full owner of the property by virtue of Section 14 of The Hindu Succession Act 1956 was upheld by the Supreme Court. The Supreme Court through its judgment in fact went beyond legislative language. The Court said that Section 14 is wide in its scope and ambit. It says that any property possessed by a female Hindu whether acquired before or after the commencement of the Act shall be held by her as full owner. The words ‘any property’ 8
are large enough to include her stridhanam obtained immediately before the commencement of the Act. The Hindu women’s right to maintenance is not an empty formality or an empty claim being concluded as a matter of grace and generosity, but it is a right against property which flows from the spiritual relationship between husband and wife and is recognized and enjoined by the customary Hindu law and had been strongly stressed by Hindu jurists starting from Manu to Yajnavalkya. In the instant case the Court further added that apart from right to maintenance a Hindu woman is also entitled to right in the family property. A widow is also entitled to maintenance out of the deceased husband’s estate which is in the hands of male issue or other coparceners. The principle enunciated by the Supreme Court in Tulsamma case had been applied in Pratap Singh v. Union of India. The petitioner challenged even the validity of Section 14(1) of the 1956 Act on the ground that it is unconstitutional and violates Articles 14 and 15(1) of the Constitution since it favored one section of the community namely the Hindu women. Relying on Article 15(3), the court rejected the contentions. Article 15(3) enjoins the State to make special provisions for women and children. It overrides Article 15(1) which prohibits discrimination on the ground of sex, race, caste, religion etc. The Court added that Section 14 is a special provision enacted for the benefit of Hindu women50. These two cases show that the Supreme Court has utilized every opportunity to uphold the true spirit and intention of the legislators. Again in Komalamma v. Kumara Pillai and others the Supreme Court stated that maintenance includes a provision for residence also. The purpose of giving maintenance is that the lady can live in a manner in which she was accustomed hither to. The Court was of the opinion that the concept of maintenance is therefore must contain provision for food and clothing and the like. It also includes provision for a roof over her head which is also a basic need. Provision for maintenance can be made by giving a lump sum amount or property The Court went on to add further rights like giving her additional amount for necessary expenditure over and above maintenance. However the exclusion of women from a coparcenery goes against the constitutional mandate of gender equality and it is left untouched by the 1956 Act. The 9
Hindu women were denied the coparcenery status which was given only to the male members of the Hindu Joint Family. For that reason alone women could not become Karta53. Moreover the 1956 Act still perpetuate the centuries old gender bias because (1) there is a general preference to agnates, (2) restricts female heir to demand partition of the dwelling house (3) retention of Mitakshara coparcenery under Section 6 of the 1956 Act. Even the Hindu law committee had recommended for the abolition of Mitakshara coparcenery and its concept of survivorship. 4. STATE AMENDMENTS TO HINDU SUCCESSION ACT 1956
Meanwhile some States took the progressive step to confer birth right to Hindu women in the joint Family property. The Constitution permits Central and State Governments to enact laws on matters of succession and hence the States can enact their own variations of property laws within each Personal law. It is worth mentioning the land mark amendments made by five southern States in India, namely Kerala, Andhra Pradesh, Tamilnadu, Maharashtra and Karnataka. As per the law of these States except Kerala, in a joint 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 son. The Andhra Pradesh Hindu Succession (Amendment) Act 1986 thus raised the status of a daughter to that of a coparcener in a Mitakhara Coparcenary. This has been eloquently reflected in its Preamble itself where it is stated that the Constitution of India has proclaimed equality before law as a fundamental right; whereas the exclusion of the daughter from participation in coparcenery ownership merely by reason of her sex is contrary there to. Same model was followed by Tamilnadu, Maharashtra and Karnataka by amending HSA 1956. However these Acts did not apply to partitions effected prior to the coming into force consequently there was no retrospective effect to the Act. Hence in Tamilnadu it was found that properties were partitioned between coparceners immediately before the Act came into force. The Law Commission has made a reference to it in its 174th report as fraudulent transactions. Hence the Tamilnadu Act states that partitions effected after 25.3.1989 will be deemed to be void although the Act came into force on 15.1.1990. Another striking feature of the Act is that the married daughters can continue to be the 10
members of the natal family. As per traditional law a married woman loses her connection with the natal family. Her ties with the natal family were severed as a result she ceases to be a member of that family and becomes a part of the husband’s family. This novel concept in fact is a peculiar feature unknown to Matrilineal or Patriarchal Joint families in India. However the Kerala State Government passed the Kerala Joint Family System (Abolition) Act 1976. Kerala stood first in abolishing the right by birth in the Joint Family there by eradicating the inherent discrimination existed in the matter of Hindu women’s inheritance rights. In fact Kerala has meticulously followed the Rau Committee set up in 1994.The Kerala Legislature completely abolished the Joint Family System under Section 3 of the Act which provides that no right to claim any interest in any property of an ancestor during his/her life time. The members of the Joint Family cannot claim any birth right in their property and that no Court shall recognize that right. Again Section 7 repealed all customs or usage with respect to joint family property. 5.174TH LAW COMMISSION REPORT OF INDIA – 2000
Since the States brought about amendments to the HSA1956 conferring birth right to women in the joint family property Law Commission of India took the initiative and submitted its 174th Report in 2000 pointing out that in the matter of property rights of Hindu women, inequality and discrimination still exist in the 1956 Act. The Commission hence made a recommendation for the amendment of the Hindu Succession Act 1956 in order to provide Hindu women equal inheritance right in the ancestral property60. In the Mitakshara coparcenary only the male members get property by survivorship. So the Mitakshara system perpetuated patriarchal regime where in property descends only though male line. Since women were not coparceners, they were not entitled to any share in the ancestral property by birth. Thus law excluded women from participating in ownership only on the ground of sex. This is nothing but an outright negation of her fundamental right. 5. HINDU SUCCESSION (AMENDMENT) ACT 2005
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The object of amending the Hindu Succession Act 1956 is to strike at the root of patriarchy that has been perpetuated through the Mitakshara coparcenery. Section 6 of the Act excluded women from inheriting the ancestral property because women are not coparceners. The Amendment Act 2005 crushed the exclusive citadel of male coparcenery in order to give effect to the principle of equality enshrined in Part III of the Indian Constitution. The gender discrimination in the Mitakshara coparcenery has been completely wiped off by raising the status of female members of the Hindu joint family equal to that of the male coparceners. The Amendment made in 2005 was based on the recommendations made by the Law Commission in its 174th Report on Hindu women’s property rights. In fact the Commission had taken the subject suomoto because of the glaring discrimination existed in the Mitakshara coparcenery. It was observed by the Commission that since time immemorial property laws were enacted for the benefit of men. Property rights had been denied to Hindu women just to exercise control over them and to make them subjugated and dependent on men. In the Joint family women were entitled only to maintenance. On the contrary a son acquires birth right in the ancestral property since he is a coparcener. The retention of the coparcenery excluding females perpetuated the traditional male dominance in the matter of inheritance. The Commission pointed out this inequity and said that it is in fact a fraud on the Constitution. On the basis of these findings the commission recommended for the amendment of Section 6 of the Hindu Succession Act 1956. It is pertinent to note the objects and reasons for the 2005 amendment of Hindu Succession Act 1956.It is stated that the Hindu Succession Act 1956 has amended to codify the law relating to intestate succession among Hindus. It is further stated that social justice demands that a woman should be treated equally both in economic and social justice. The exclusion of daughters from participating in coparcenery property ownership merely by reason of their sex is unjust. The Commission has also taken into consideration the changes carried out by way of state enactments in the concept of
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Mithakshara coparcenery. The Act brought about changes in the law of Succession among the Hindus and gave rights which were till then unknown in relation to women’s property. AMENDMENT OF SECTION 6 OF HINDU SUCCESSION ACT 1956 ACT
Section 6 of the Hindu Succession Act 1956 deprives Hindu women the right to inherit ancestral property. The property devolves only on male members. There is a blatant violation of the equality principle guaranteed under the Constitution. When partition of joint family takes place only male members get share of the family property. Women get nothing. Approving the recommendations of the Law Commission of India, Parliament enacted the Hindu Succession (Amendment) Act 2005. The following notable changes are brought to Section 6 to remove the blatant discrimination. It provides that the daughter becomes a coparcener because of her birth in the joint family just like the son68. b.SECTION 6 OF THE 2005 AMENDMENT ACT Section 6 of the amended Act 2005 has completely wiped off all the in equalities in Section 6 of the 1956 Act at one stroke. The females in the joint families are elevated to the status of coparceners having birth right in the ancestral property equal to that of a son. Thus women are given coparcenery status. Some of the discriminations that existed in sections 23 and 4 (2), have been omitted by the 2005 Act. It is another significant achievement of the 2005 Amendment. The Northern States like Delhi, Punjab and Haryana followed inheritance rules that are highly gender unequal. Here primacy is given to male lineal descendants in the male line of decent and women come very low in the order of heirs. More over women get only a limited estate and lose the land on remarriage. The Haryana government put forward to Central Government a memorandum stating that a female instead of getting a share in her father’s property should get in her father-in-law property. It is stated that on account of daughters’ share in the land there has been a large scale fragmentation of holdings which Punjab, the granary of the country cannot afford.Thus tenurial laws pertaining to agricultural land passed by different states pertaining to agricultural land prescribed different rules for succession and all of them remained valid. 13
Another notable achievement of the 2005 Act is the inclusion of all daughters especially married daughters as coparceners in the Joint Family Property. Section.6 of the 2005 Act removed the discrimination between married and unmarried daughters. It took away 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 natal home as a matter of right and not on the displeasure and mercy of the relatives. This will certainly enhance her selfconfidence worth and give her greater bargaining power for herself and her children, in both natal and marital families. Further giving daughters right to ancestral property will also have an impact on changing the inherently unequal power equations between the majority of the husbands and wives even today. A research done by Bina Agarwal has shown that the incidence of violence decreases if women own immovable property. The Law Commission has also addressed the discrimination inherent in the Mitakshara coparcenery under Section 23 of the Hindu Succession Act . Law Commission recommended for the omission of Section 23 from the 1956 Act. The Commission advocated that daughters should get full right of residence in their parental home. It was also viewed by the Commission that the bar on partition by female heirs could take away the true spirit of coparcenery right. Therefore the Commission deleted Section 23 in order to strengthen the coparcenery rights of the females. Consequently Section 23 of the 2005 (Amendment) Act was omitted to confer all daughters (including married daughters) the same rights as sons to reside in or seek partition of the parental dwelling house. By deleting Section 23 of 1956 Act, the amending Act (2005) removed the last remnants of discrimination against women. The objective of the section is to prevent the fragmentation of a family dwelling house at the instance of a female heir to the prejudice of the male heir. This section reflected one of the ancient Hindu law tenets that treasured the dwelling house of the family an impartible asset. By the omission of section 23, the daughter can remain a daughter forever and she will not lose her relations with her natal family even after marriage. Similarly the Amendment Act (2005) removed the second discrimination between women themselves on the basis of their marital status. The section was based in favor of unmarried daughters and granted them the right to residence in the dwelling house but 14
only till they were unmarried80. It is pertinent to note here the Supreme Court’s path breaking decision in Savitha Samvedi v. Union of India as early as in 1997. It was held that the differentiation based on marital status is wholly unfair, unreasonable and gender biased, and violates Article 14 of our Constitution. The eligibility of a married daughter must be placed on par with an unmarried daughter so as to claim the benefit referred to in the Railway Ministry’s circular restricting the eligibility of married daughter of the retiring official for regularization. It is worth quoting the common saying that a son is a son until he gets a wife; a daughter is a daughter throughout her life. The apex court hence passed an order issuing direction to the Railway Ministry to grant regularization of the Railway Quarter in favor of the first appellant, the married daughter. DELETION OF SECTIONS 4(2) AND 23 OF HSA 1956
The omission of Section 4(2) of The Hindu Succession Act 1956 is another achievement of the 2005 amendment Act. By the deletion of Section 4(2) of The Hindu Succession Act 1956, a highly discriminatory clause of the Hindu Succession Act 1956 has been removed. Now woman also has inheritance rights over agricultural lands just as men. The third achievement of the Amendment Act 2005 (The Hindu Succession Act) is the omission of Section 23 of the 1956 Act thereby giving all daughters (married or not) the same rights as sons to reside in or seek partition of the family dwelling house. Section 23 denied residential rights to married daughters in their parental home. Unmarried daughters are given residence rights but could not demand partition. The 2005 Act also deleted Section 4 of 1956 The Hindu Succession Act which barred certain widows of predeceased sons, from inheriting the deceased’s property, if they had remarried. Now the disability is removed and they can also inherit. An analysis of the Courts’ verdicts would reveal that the courts have also favored the patriarchal concept of male preference over females in the matter of dwelling house. The Kerala High Court held that as long as male heirs whether alone or in plurality choose to live in the dwelling house, female heirs are not entitled to seek partition84. Again the Madras High Court held that when there is just one male heir, the female’s heirs cannot seek partition until that male heir decides to do so. The court added further that in such a case the right to demand partition vested in the female heir vide section 23 15
of the Act would be permanently postponed and ultimately frustrated. Such contingencies would cause great hardship to the female heirs, but cannot be avoided85 according to the Bombay High Court the section becomes defunct when there is only a single male heir, as the property ceases to be a joint family property. It is strange to see that the Supreme Court refused to declare it as unconstitutional in spite of the discrimination on the basis of sex. It was quite obvious that the female heir just because of her being female heir is not allowed to claim partition. Even though grave injustice has been done to woman and a Section that was enacted to empower them has in fact been used to subjugate them. In spite of the liberal opinions expressed by various High Courts, the Supreme Court in Narasimha Murthy v. Susheelabai declared that though in the words the male heirs choose to divide their respective shares suggest that at least two such male heirs must exist and decide not to partition, the dwelling house in which the right of the female heir is postponed and kept in abeyance until the male heir or heirs of the Hindu intestate decides to partition it, it does not necessarily lead to the only in evitable conclusion that the operation of Section 23 must stand excluded in the case of Hindu intestate leaving behind his/her surviving only a son and a daughter. It is pertinent to note here that the Honorable Supreme Court took note of the hardships of only the male heirs’ claim partition. It failed to see the opposite side. The consequence of this ruling is that a woman cannot claim partition of the property that belongs to her even if she wants to live separately. The patriarchal Court refused to declare it as unconstitutional despite the discrimination on the basis of sex female heir is denied the right to claim partition because of her gender alone. A section that was enacted to empower them has in fact been used to subjugate them. Several scholars contended that Section 23 was per se discriminatory as it provides male heirs with the absolute right to seek partition while making right of female heirs contingent on the right of male heirs. The object is to prevent the fragmentation of a family dwelling house at the instance of a female heir to the prejudice of the male heirs. The ancient Hindu law considered the dwelling house as unimpartible asset. The Courts are also giving verdicts favoring this strong patriarchal concept.
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The Kerala High Court held that as long as male heirs whether alone or in plurality choose to live in the dwelling house, female heirs are not entitled to seek partition. The Madras High Court has held that when there is just one male heir, the female heirs cannot seek partition until that male heir decides to do so. The Court further added that in such a case, the right to demand partition, vested in the female heir vide Section 23 of the Act would be permanently postponed and ultimately frustrated. Such contingencies would cause great hardship to the female heirs, but cannot be avoided. According to the Bombay High Court, the section becomes defunct when there is only a single male heir, as the property ceases to be a joint family property. The 2005 Amendment meticulously carried out the changes that are recommended by the Law Commission in its 174th Report. The omission of discriminatory provisions removed the disabilities of the women in the matter of inheritance and have been conferred a status equal to that of men as envisaged under Article 14, 15 and 16 of the Constitution. Moreover when HSA was amended by the 2005 Act it was thought that Hindu women would start litigation claiming their right in the coparcenery property. As in the case of Christian women only very few women came forward asserting their rights. So Sheela Devi [Sheela Devi v.Lalchand and Anr] was one of them. The issue before the Court was whether the 2005 Act would supersede the old Hindu Law? The Court observed that the Parliament with a view to confer right upon the female heirs even in relation to the joint family property enacted Hindu Succession Act2005.The State of Andhra Pradesh had already enacted the same provision in 1987 itself. As per the State Act of 1987the daughter acquires right by birth in the Joint Hindu Family governed by Mitakshara Law. Again in Sekar v.Geetha & Ors the Supreme Court made it clear that the Parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act but also conferring an absolute right to a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act. It is also apt to look into the observation made by the Orissa High Court in Pravat Chandra Patnaik and Ors v. Sarat Chandra Patnaik & 17
Ano. In the instant case the Court highlighted the intention of enacting the 2005 Act. The Court observed that it is to remove the discrimination contained in Section 6 of the Act by giving equal right in the Hindu Mithakshara coparcenery property as the sons have. So a daughter gets the right of a coparcener from the date the amended Act came into force i.e.9.9.2005. The Court also made it clear that a daughter gets the rights of a coparcener from 2005 even though they might have been born earlier. Thus there is a gradual development in conferring property rights to Hindu women. However it remains as a paper tiger and the implementation is very poor. SOURCE OF ACQUISITION OF PROPERTY BY FEMALE UNDER HINDU LAW – A DETERMINING FACTOR On the basis of the source of the acquisition of the property, the Act discriminates in evolution between male and female property. With respect to devolution of male separate property, irrespective of whether he inherits from his parents or his wife, the Act lays
own uniform rules of succession with regard to scheme of succession and
determination of heirs but in case the of female dying intestate, the heirs are determined on the basis of the source from where she acquired the property. Thus the basis of inheritance of female’s property is the source from where the property has come in her hand. Accordingly for determining the scheme of succession and her heirs, property acquired by her could be classified into two types : (1) property in general and (2) property inherited from her parents or husband or father-in-law. i.PROPERTY IN GENERAL General rule of inheritance is in favour of consanguinity. Hindu and Parsi law to an extent also recognizes the relationship arising out of affinity. Under Hindu law the property of a male Hindu dying intestate devolves also on the widow of pre-ceased son or predeceased son’s son and under Parsi law the widower of predeceased daughter have right in his father-in-law’s property. But with respect to Hindu females the statutory provision goes much step ahead by making all relations of husband to be eligible to inherit from his wife.
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General rules of succession guide only when property is acquired by her in any mode other than by inheritance in parent’s or husband’s property. The provision groups the heirs into five categories comprising of sons, daughters, husband, children of deceased issues under the first entry, heirs of husband under the second entry, father and mother in the third entry, heirs of father in the fourth entry and heirs of mother in the last entry. A son or a daughter also includes adopted sons and children of any predeceased son or adopted son but not illegitimate children and step-children as stepchildren fall in the category of the heirs of the husband. The Act lays down that the heirs of husband would be preferred to parents of the deceased in her general property. If a Hindu woman dies issueless with husband being alive at the time of her death the husband takes all her property with no share reserved for her own father or mother as they fall in next order of hierarchy. On the contrary, in case of a male dying intestate, his separate property devolves on Class I heirs comprising of his wife, children and share is also reserved for his mother. Rules regarding devolution of her property has to be read in conjunction with other provision which uniform order of succession to her property and regulates the manner of its distribution. The old, patriarchal attitude that the Hindu woman after marriage completely loses her identity and assimilates with the identity of her husband is reflected under the Act. The Hindu woman after marriage is considered to become completely part of her husband’s family uprooting herself from her parent’s family to the extent that in her property, in absence of her children and her husband, the heirs of her husband have preferential right over her own parents. It is ironical that heirs of the husband are preferred to intestate’s own parents. The moment the Hindu woman gets married the legislative obsession of her transportation from her natal family to matrimonial home and superiority of her in-laws over her blood relations is clearly reflected in making the entire clan of the husband her heir by relegating the parents to an inferior placement . Further, for the purpose of ascertaining the heirs of husband, it is to be deemed as if her property immediately on her death devolves on her husband who also dies immediately after her leaving his heirs who would be inheriting the property once 19
possessed by such wife. The list of heirs of males dying intestate is divided into four classes with 16 members in Class 1, many other members in class II and then his innumerable number of blood relations connected to him by any generation among agnates and cognates, thereby making the list so exhaustive that leaves a rare possibility for parents to inherit the property of their own daughter. The heirs of the husband have to be ascertained not at the time of the death of the husband but at the time of wife’s death. The parents get their daughter’s property only when there is no heir of husband capable of inheriting the property is present. Wife may never have seen her husband's close or even a distant relative, but in the event of her death, her parents who bring her up are asked to take a backseat and the relatives of the husband who may never be on scene before her death can legally claim her property. Once again, concepts of gender equality give way to patriarchal considerations that treat women as extensions of their husbands by favoring their husbands' heirs. All the more, in absence of father and mother the property then passes to the heirs of her father and not to the heirs of mother neither is equally divided between heirs of father and heirs of mother. When property is to be inherited by heirs of father it is presumed that her property now belonged to him and he died intestate leaving that property for his heirs to inherit the property. Again the rules of devolution of property of male dying intestate come into picture bringing in four different classes of innumerable heirs. It creates a fiction for ascertaining heirs by treating it as father’s or husband’s propertybut that cannot make property her father’s or husband’s property. This leaves utopia for next category of heirs i.e., heirs of the mother to take in the property. The male legislators’ psychology to consider themselves superior to women is further echoed when the property in absence of her parents goes preferentially to heirs of her father then to heirs of her mother. Granting heirs of the father favourable rights to inherit and granting secondary status to the heirs of the mother to get rights in the property demonstrates the superior status being given to male rather than female in inheriting property expressly discriminates on basis of sex.
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But under other personal laws uniform scheme of succession is prescribed irrespective of sex of the person dying intestate. Thus woman under different statutory laws, except Hindu law, are allowed to maintain her identity irrespective of her marital status. No other personal law gives statutory preference to the relatives of husband over female’s own blood relatives. One of the reasons for not preferring parents of the deceased married Hindu female in comparison to heirs of her husband could be that during those days when HSA, 1956 was framed and enforced the psychology of Hindu father considered it great sin to take back anything from his daughter’s matrimonial home. After giving daughter to the son-in-law, he averted going to her house, never took his food even water in her house, so that the purity was maintained. When drinking water in his daughter’s matrimonial home was abhorred to, the question of taking her property on her death was out of question. But now the society and also the psychology has change thus accordingly the discriminatory law should change. This unique feature of Hindu law giving preference to relatives of husband in wife’s property appears to be devoid of any reason and wisdom. Laying down different rules of succession for unmarried and married daughter which laws are fundamentally different is clearly discriminatory and illogical. Sita Ram S. Jajoo expressed his anguish on Hindu Code Bill framed by the B.N. Rau Committee in the following words “the conservative members of the Parliament succeeded in ensuring the tyranny of the majority by slipping in Section 15(2) to the final form of the 1956 Act when no trace of it is found in the original Bill”. In fact, the Hindu Succession Bill, 1954, as originally introduced in the Rajya Sabha did not contain any clause corresponding to such an exception. The original Hindu Succession Bill (Bill No 13), 1954, provided for six separate categories with husband being placed under the second category but the amended bill (Bill No 13B) of 1954, placed the husband along with the children, in the first category. The scheme under the Hindu Succession Bill (Bill 13) of 1954 was as follows: (i) firstly upon the children, including the children of any predeceased son; (ii) secondly, upon the husband; (iii) thirdly, upon the mother and father; (iv) fourthly, upon the heirs of the husband; (v) 21
fifthly, upon the heirs of the mother; and (vi) lastly, upon the heirs of the father. The scheme under the amended Hindu Succession Bill (Bill 13B) of 1954 was as follows: (i)firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (ii) secondly, upon the mother and the father; (iii) thirdly, upon heirs of the father; (iv) fourthly upon the heirs of the mother; and (v) lastly upon the heirs of the husband. Thus blood relations of the wife were considered to be closer than that arising because of affinity however the 1956 Act promoted the heirs of husband to category (b) and relegated the blood relations to an inferior placement. It appears that Hindu Succession Bill (Bill 13B) of 1954 was more justified and reasonable in giving due recognition to her own parents than to distant relatives of her husband from whom she in turn will never be inheriting and probably may never have met. Experiences have showed that a Hindu male having complete power of testamentary disposition of his separate property generally made a will in favour of other male members of family thereby taking away or reducing the share of Hindu woman which otherwise would have devolved on her if he had died intestate. Under Muslim law, the propositus could make a will of maximum 1/3rd share of his property, rest share is kept for his heirs. Even after being aware of the prevailing problems the legislators did not lay down any provision with respect to imposing limitation on the Hindu’s testamentary power of disposition in separate property under HSA, 1956. On a question by MP Mr. Ravneet Singh to the Minister of Law and Justice that whether the government was contemplating to amend the Hindu Succession Act, 1956, to place limitation on testamentary disposition with respect to his self- acquired property so that women’s rights in property are not denied, the ministry answered that there was no proposal under consideration to further amend the Hindu Succession Act, 1956 in respect of devolution of property of male as well as female dying intestate as equal rights are given to both sons and daughters as class I heirs40. Placing no limitation on the testamentary disposition of property thereby impliedly allowing Hindu male to bequeath his property to other male members of the family which otherwise would have devolved on female heirs on his death and at the same time making no attempt to remove the 22
discriminatory rules of succession with respect to females results in further deteriorating the position of women vis-à-vis men in so called society striving to achieve equality between the sexes. ii.PROPERTY INHERITED FROM FATHER OR MOTHER AND HUSBAND OR FATHER-IN-LAW Source of inheritance by a deceased Hindu male intestate not being considered for devolution of male’s property but considered only for a deceased female Hindu dying intestate constitutes gender discrimination. HSA, 1956 lays down uniform rules of succession for males irrespective of the source of acquisition in his hand but lays down different scheme for devolution for female’s property depending upon her mode of acquisition of property - general and special. Special rules of succession carve an exception to the otherwise general rules of succession. Special rule comes into force only when the property is inherited by her from her parents or husband or father-in-law and dies intestate without leaving any child. The scheme of succession and the heirs change in such exceptional devolution. Generally once the property is inherited, it becomes the separate property of the person inheriting it and devolves on his heirs but under HSA, 1956 devolution of such property with respect to women which she inherits from her parents or husband and father-in-law, in absence of son or daughter, reverts on the heirs of the person whose property she has inherited i.e., to the heirs of the father, but not to the heirs of the mother and to the heirs of the husband respectively thereby making her only the temporary owner of the property during her lifetime. It is then assumed that the property belonged to the father/husband which then devolve on the heirs of the father/husband respectively and not to her heirs. If she inherits property from her father/mother and dies issueless leaving behind only husband, the property will still not pass to her husband but will revert to her father’s heirs41. Husband of a woman get a share in her property, which she has inherited from her father/mother, only when she dies leaving behind any issue or children of her predeceased issue.
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One more notable point is that only property inherited from her parents or husband and father-in-law, in absence of her children, leads to different scheme of succession and does not include sources of succession from a brother, sister, uncles, aunts or grandparents. The exceptions to the general rule are motivated by a clear and traditional desire that the property shall not pass from family to family merely by a female's death intestate. The statutory provision also provides for devolution of property of female, governed by marukattayam and aliyasthana law. Under this law if she inherits property from her husband or father-in-law, in absence of her child it devolves on the heirs of the husband. The property inherited by such female from her father or mother does not form an exception but devolves by general rule of succession wherein it devolves firstly on her sons, daughters including children of her predeceased child and mother, secondly upon her father and the husband, thirdly upon the heirs of the mother, fourthly upon the heirs of the father and lastly upon the heirs of the husband. Exception with respect to devolution of female Hindu is confined only to property 'inherited' by her that too one she inherits only from her father, mother, husband and father-in-law and do not affect the property acquired by her by gift or by device under a Will of any of them43 or by receipt of property from them during their lifetime. Thus, property received by a daughter from her mother through a Will orgift46 would be treated as her general property and not to be ‘inherited’ property which will pass by general rules of devolution. Such provisions depict that property continues to be inherited through the male line from which it came either back to her father's family or back to her husband's family. Basis for reverting the property back to the source was to prevent such property passing into the hands of persons to whom justice would require it should not pass. The source from which she inherits the property is always important and that would govern the situation otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property48. Sustaining the unity of the family and for that the entitlement to the property carved out in favour of closer relations than remote is the principle behind the rationale. If such property is 24
allowed to be drifted away from the source through which the deceased female has actually inherited the property, the object of placing exception would have been defeated50. Placing such exceptions, were intended only to change the general order of succession and not to eliminate the other classes of heirs. But if this rationality with regard to the property inherited by a married female Hindu from either of these two sources is accepted the same rationality appears to be absent from properties inherited by a Hindu male whether from his wife, mother, father or otherwise which then appears to be arbitrary and discriminatory. There is discrimination apparent in the principle recognised in Section 15(2) of the Act in it attaching significance to the source of the estate of a Hindu woman dying intestate though elsewhere in the Act there is no corresponding provision for the Hindu man.The constitutional validity of such a provisions when challenged in Sonubai Yeshwant Jadhav v. Bala Govinda Yadav and Ors. on the ground that it discriminates between "the heirs of husband" and "heirs of wife" the court while ruling in its favour, held that recognition and reference to the heirs of the husband was just a logical necessary step to continue that unity in which the female had merged by marriage and where she was an integral part of such a family. It is a rule of devolution that begins to operate when "a wife" -- as distinct from mere female dies with regard to inherited property from husband, heirs being described as husband's heirs that are made to succeed. Arguments given by the court that on marriage woman is regarded as a member of her husband’s family appears at first to be convincing but cannot be sustained when viewed in comparison with other personal laws. No other personal laws superimposes her relationship with her parental family with that of her matrimonial family in devolution of her property nor classifies the heirs on the basis of source of the acquisition of her property by way of inheritance from her parents or from her husband. Recently the Single bench of same high court in Mamta Dinesh Vakil v. Bansi S. Wadhwa (which is referred to Division bench) has held that the distinction in the rules of inheritance and succession governing simplicitor Hindu males and Hindu females is distinctly hit by the
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principle of equality embodied in Article 15(1) of the Constitution as being a discrimination only on the ground of sex. Such provision came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament giving the reason in Clause 17 of the Bill, that "While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that properties inherited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father-in-law reverts to the heirs of the husband in the absence of issue. In the opinion of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass”. The intent of the legislature is clear that the property, if it originally belonged to the parents of the deceased female, should go to the legal heirs of the father and if it originally belonged to her husband/father-in-law should go to her husband’s heirs. She is perceived as having no identity of her own as the heirs are not described as brother, sister, her brother-in-law etc., but as heirs of her parents and heirs of her husband. This reversion of the once-inherited-property back to her father’s or her husband’s heirs shows a desperateness on the part of the legislature to treat her only as a temporary occupier. Neither Muslim law nor Indian Succession Act, 1925 differentiate, on the basis of source of acquisition, between rules of devolution of property of male or female dying intestate. When a Muslim male dies his widow along with his father, mother apart from others, inherit as sharer and when a female Muslim dies irrespective of her mode of acquisition of property, her husband along with her own father and mother inherits as sharers in her property. The basis of her procurement of property does not change the scheme of succession giving preference to relatives of the husband than to her own parents in property not inherited from her parents or her husband . Marriage under Indian Succession Act, 1925 does not give any interests or power in the property whom he or she marries . The reason of inserting such a provision was to get rid of the principle, so far as property is concerned, that the husband and wife are one person in law. Before passing of Indian Succession Act, 1865 Common law governed the people of India excluding Hinuds, Muslims, Sikhs and Jains but applied to Europeans, 26
Indian Christians, Jews Armenians and Parsis. Common law placed certain restrictions on women belonging to these religions regarding possession and alienation of property and with respect to “real estate” the husband acquired by marriage an interest in the property of the wife and during marriage wife could not alienate the property without the consent of her husband. This disability was removed by ISA which established the principle that by marriage the husband does not acquire any rights in the property of wife. Rules of devolution of property, whatever be the mode of gaining of property, of both males and females dying intestate, are uniform for Christians under ISA, 1925. Part of the property first devolves on the spouse and then is divided among other relations of the deceased wherein preference is first given to the lineal descendants, then to the father, then to the mother, brother, sister. Even when a Christian female dies intestate, property acquired from whatever source, devolves by reserving a share to her husband which then passes to her children. In absence of her children it will devolve on her father in whose absence would further devolve on her own mother, brother and sister. Even the Portuguese Civil Code, 1867 does not discriminate on the basis of accumulation of property by male or female for scheme of devolution of property. The Portuguese Civil Code prescribes for community of property which consists of all movable property of both the spouses on date of marriage and all property acquired during marriage, gets divided equally between them on dissolution of marriage, be it by divorce or death. The Code does lay down that the property what one inherits does not automatically become the community property and on death of such person devolves on firstly on his/her descendants, secondly on ascendants, thirdly on brothers, fourthly on surviving spouse in the hierarchal order. The parties in contemplation of their marriage may contract to make a gift of all or part of their inheritances to the other spouse. By retaining the source of acquisition for determining the heirs of female Hindu the legislature perpetuates the old patriarchal view that the ownership rights to women cannot be granted full but must be somewhat controlled. Why should the source of acquisition be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man
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and when none of other statutory personal law differentiates on the basis of mode of acquisition of property between sexes? iii. SELF-ACQUIRED PROPERTY - A GREY AREA By the Act of 1956, a Hindu woman is considered to be capable of holding her separate property and owning it in her own right. She has ownership rights in such property by way of inheritance or by acquisition. Inheritance may be by receiving a share in her father’s property or her husband’s property and acquisition may be by gift, will, purchase, prescription or her self-acquired property acquired by way of her own skill. All self-acquired property is the separate property but not vice-versa. Separate property apart from including self-acquired property also includes a share by way of inheritance, gift, by will or purchase. Yet the enactment of 1956 does not differentiate between separate property and self-acquired property. The Act lays down same general rules of succession for both separate and self-acquired property of female dying intestate wherein it first devolves on her children or children of her predeceased child and husband then to the second class i.e., to her husband's heirs. The relations or her husband are given preference to her own parents. The legislators did not contemplate that Hindu women would in later years to have self-acquired property. With the growing demands of time, it is generally parents who provide all facilities to girl child for making her capable of earning her own income but when it comes to devolution of such property preference is given to husband’s relatives rather than her own parents. The self- acquired property of the female intestate cannot be traced back to either to the paternal or in-laws family. As the separate property devolves firstly on her children or children of her predeceased child and, husband, there being no difference between separate and self-acquired property, the self-acquired property of a Hindu married female dying intestate, also devolves on her children and husband. In absence of her heirs in the first category, the property would devolve totally upon her husband’s heirs who may be very remotely related as compared to her own father’s family i.e., her own near blood relations e.g., her father or mother do not inherit in presence of distant relations of her husband who inherit as his heirs . A Hindu female who would otherwise hope to succeed 28
to an estate of another Hindu female as an heir would receive a setback from the distant relatives of the husband of the deceased not even known to her or contemplated by her to be her competitors except upon claiming precedence as class II heirs under Section 8 or as preferential heirs under section 15(1).Giving preference to husband’s heirs may to an extent be justified in separate property on ground that after marriage she becomes part of her husband’s family but giving them preferential rights than to her parents in her selfacquired property is not justified particularly when she may not have acquired property with the support of her husband or his family member. It may be noted that the general rule of succession goes in favour of blood relations only, with Hindu and Parsi being exceptions. No other succession law in India, gives statutory preference to the in-laws of a married woman over her own blood relatives. Even Muslim law lays down uniform rules of succession irrespective of sex of the intestate giving primacy the intestate’s blood relatives. Similarly even under Christian and Parsi law blood relatives are preferred. Further the absurdity is that same rule applies to Hindu male i.e., when he dies, his blood relations are given preference and his wife’s relatives do not even figure in the order of succession despite the manner in which he may have acquired the property but when she dies, the property can be claimed by even distant relative of the husband and not by her own parents. A woman would prefer her blood relations to her husband’s relatives to be her heirs and this provision goes against the reciprocity of inheritance as the entire group of husband’s heirs howsoever remote have been made her heirs but she is not entitled to inherit from them. With more and more women becoming economically independent, socio-economic changes warrant corresponding changes in the law on the subject as well. Legislative and Judicial advances recognizing self-acquired property of Hindu female 1) Law Commission of India 207th Report61 on self-acquired property of Hindu female dying intestate In view of the vast changes in the social milieu over the past few years when women have taken strides in all spheres of life acquiring property earned by their own skill, (a 29
situation did not seem to have been in the contemplation of legislators when the Act was initially enacted), the Law Commission of India in 2008 came up with three alternative options namely: 1. Self-acquired property of a female Hindu dying intestate should devolve first upon the heirs of her husband. 2. Self-acquired property of a female Hindu dying intestate should devolve first upon her heirs from the natal family. 2. Self-acquired property of a female Hindu dying intestate should devolve equally upon the heirs of her husband and the heirs from her natal family. With respect to first option, it would mean to continue the status-quo but socio-economic changes deserve to be recognized and corresponding changes should be reflected in the law on the subject as well. Speaking about the second option, the Commission was of the view that most married women would prefer that their parents should be the more preferred heirs to inherit her property if her children and husband are not alive. When a man dies intestate, his wife’s relatives do not even figure in the order of succession, so parity should be made by applying the same rules as applicable to male’s property. Accordingly S. 15(1) would have to be amended to specify the general rules of devolution, which would apply not only to self-acquired property by a women but also to other property acquired through her family, gifts, etc. and only proviso which would then be needed would be to property that a woman. acquires from her husband’s family. As regards the third option of equally dividing her self-acquired property between her natal family and spouse’s family, the Commission observed that the truth is that in spite of her closeness to, and dependence on, her natal family, her relations with her husband’s family are not separated and uprooted in entirety but she continues to be a member of her husband’s family. The social ethos and the mores of our patriarchal system demand that the existing system should not be totally reversed lest there may be social and family tensions which may not be in the overall interest of the family as a whole and, as such, ought to be avoided. Taking note of the amendments made to the effect that women have been entitled to inherit property from her paternal side as well as from husband’s side, the Commission finally suggested bringing in balance by giving equal rights to her parental heirs along 30
with her husband’s heirs to inherit her property. It has proposed that in case a Hindu woman dies intestate leaving her self-acquired property with no heirs, as mentioned in clause (a) of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side. Accordingly it has suggested the addition of S. 15(2)(c) in HSA, 1956 to include: “(c) if a female Hindu leaves any self-acquired property, in the absence of husband and any son or daughter of the deceased (including the children of any pre-deceased son or daughter), the said property would devolve not upon heirs as mentioned in sub Section (1) in the chronology, but the heirs in category (b)+(c) would inherit simultaneously. If she has no heirs in category (c), then heirs in category (b) +(d) would inherit simultaneously.” Supreme Court on Self acquired property of Hindu female Even though the Law Commission in 2008 in its 207th Report had suggested the devolution of self-acquired property of women dying intestate granting rights to both her natal and matrimonial family, the Supreme Court did not take the recommendation earnestly when the issue of devolution of self-acquired property of Hindu female for the first time came before the Supreme Court in 2009 in Omprakash v. Radhacharan. The husband of the woman died just after three months of their marriage so the woman was driven out of her matrimonial home immediately after the death of her husband. She never stayed in her matrimonial home after that and came to her parental home where she was given education. She was not lent any support from her husband's family and all support had come from her parents. She got employment and died intestate leaving behind various bank accounts with also huge sum in her provident fund account. On her death, her mother claimed for the property and later deceased’s brother joined the mother which was opposed by the respondents who were the sons of sister of deceased’s husband. The issue was whether sub-Section (1) of Section 15 of the Hindu Succession Act, 1956 or sub-Section (2) thereof would be applicable in the facts and circumstances of this case. The court accepted that the make any distinction between a self-acquired property and the property which she had inherited. It refers to a property which has vested in the 31
deceased absolutely or which is her own. Even after accepting that her in-laws had no contribution in its making and is a hard case, the court did not did not invoke a different interpretation of a statutory provision. It vehemently held “it is now a well- settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous”. Settling all the controversy regarding the devolution of interest in the self-acquired property of the woman, it opined that the self-acquired property of a female would be her absolute property and not the property which she had inherited from her parents therefore Sub-section (1) of Section 15 of the Act would apply and not the Sub-section (2) thereof. The judgement going by strict interpretation of a statutory provision views the man's estate and the woman's estate through different spectacles giving less autonomy to her over her property in comparison to her male counterpart. The Supreme Court based on justice, equity and good conscience could have taken a more progressive and sympathetic view, could have addressed the issue of gender discrimination as is very clear in the statute rather than just terming it to be a hard case. Supreme Court under Article 142 of the Constitution is empowered to go beyond the laid rules for doing complete justice and examples abound when courts have deviated from rigid provision. Here also the Supreme Court ought to have laid down precedent recognizing women’s power, autonomy and devolution of her self-acquired property. Justice demands that the blood relations of the woman be given preference. The changing socio economic scenarios and differing ground realities call for delivering justice with open eyes as it is not enough if justice is done, justice should also appear to have been done. The gender difference ought not corrupt the ideal of equality and the law should not stand in the way of giving justice to woman which has been denied to her. Report of National Commission for Women (NCW) NCW has suggested for deletion of rules of succession of female dying intestate and for amending the existing rules for devolution of male dying intestate to make it general and uniform to be applicable to any person irrespective of his sex. It has suggested the inclusion of following: “General rules of succession - The property of a Hindu dying intestate shall devolve according to the provision of this chapter - a) Firstly, upon the 32
heirs, being the relatives specified in Class I of the schedule; b) Secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in Class II of the schedule; c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and d) Lastly, if there is no agnate, then upon the cognates of the deceased”. 4. Hindu Succession (Amendment) Bill, 201364 for Self-acquired property of Hindu female Despite the fact that the Law Commission had suggested65 for devolution of selfacquired property of Hindu female to devolve equally on her parental heirs along with her husband’s heirs in absence of her children and husband, the legislators did not go ahead by incorporating the suggestion by way of amendment in the Hindu Succession Act, 1956. The Supreme Court also did not take note of the aforesaid suggestion of the Law Commission and gave a strict interpretation to the words of the statute in Omprakash66 case. After 5 years of Law Commission’s suggestion the legislators have finally awakened to look into the devolution of self-acquired property of Hindu female and recently proposed Hindu Succession (Amendment) Bill, 2013 for amendments with regard to self-acquired property of women in the parent Act. Instead of abiding by the 207th Report of Law Commission of granting equal rights in her property to both her parental heirs and husband’s heirs in absence of her children and her husband, it proposed to give first preference to her parental heirs over her husband’s heirs. It also proposes to define ‘self-acquired property’ expressly to include both movable and immovable property acquired by her by her own skill and labour which is to be incorporated in the s. 3 of the Act dealing with ‘definition’ of different terms as used in the Act. The Bill proposes to add clause (k) after clause (j) in section 3 of the Hindu Succession Act, 1956, namely:— “(k) “self-acquired property” means any property including both movable and immovable property acquired by a female Hindu by her own skill or exertion.” Further, it sought to make changes in Section 15 of the Hindu Succession Act, 1956 so that first preference is given to the parental heirs of the wife over the husband’s heirs in devolution of her self-acquired property in absence of her children or her husband. It proposed the addition of clause (c) in sub-Section (2) of Section 15 namely:33
“(c) if a female Hindu dies intestate, her self-acquired property, in the absence of husband and any son or daughter of the deceased (including the children of any predeceased son or daughter), shall devolve, not upon the heirs as referred to in subsection (1) in the order specified therein, but in the following manner: (i) firstly, upon the mother and the father of the female; (ii) secondly, upon the heirs of the father of the female; (iii) thirdly, upon the heirs of the mother of the female; and (iv) lastly, upon the heirs of the husband of the female.”. By this proposal the Bill to an extent tries to bring in similarity between devolution of property of Hindu men and Hindu women. As in case of men the property passes to Class I heirs comprising of his children, widow, children of predeceased children, mother and widows of predeceased son or grandson and in their absence to Class II comprising of his father, brothers and sisters, his grandfather and grandmothers and others with no shares reserved for her wife’s relatives in any order of succession, the proposed amendment gives first preference to the parental heirs of the wife over the husband’s heirs to inherit the self-acquired property of a women dying intestate. II. INHERITANCE RIGHTS OF MUSLIM WOMEN UNDER THE MUSLIM PERSONAL LAW
Muslim women rights have been a topic of discussion ever since the Constitution came into force in 1950. Islamic law (Shariah) is considered by many as patriarchal and oppressive to women. However the Quran has addressed women’s issues fourteen hundred years ago by creating some reforms to improve the status of women though these reforms do not seem to be practiced in Muslim society today. Though Islam as revealed to the prophet Mohammed is not oppressive to women its interpretation enacted in the family law, and every day living is patriarchal. In fact the oppression of Muslim women is due to the conservative readings of Shariat which also include gender discriminating customary norms that are presented as god’s immutable words. Muslim feminists trace the source of women’s oppression to the same Shariah laws which interpret the divine laws wrongly Further Islamic law is saturated with pro-patriarchal interpretations. Although the status of women improved during the time of the prophet it was only short lived Muslim masses do not look beyond 34
Islam and they view it as complete way of life. The law of Divorce has become a tool in the hands of the husbands to oppress the Muslim women. The Muslim scholars are of the opinion that the Muslim Personal law as practiced under the Shariat Act had brought untold miseries to Muslims women and if Allah appears in person, he would roll his head in shame over the plight of Muslim women. India is a multicultural and multi religious society and its citizens are given an opportunity for their complete development irrespective of their sex, caste, religion or race by ensuring the various fundamental rights in part III of the constitution. In spite of constitutional assurances, the status of Muslim women has not improved because of the religious ordain with its conservative approach. The Muslim women could not benefit from the various welfare legislations since they are still governed by their own Islamic laws. The centuries old principles of Islam are still applicable on various matters concerning marriage, divorce and polygamy. The Constitution of India the backbone of all national laws enshrines within it the very important principle of justice, liberty, equality and fraternity for all citizens of the country. This fundamental law of our land assures the dignity of individuals irrespective of their sex, religion or place of birth. While framing the Constitution, the framers were well aware of the various discriminatory practicesand suppression of women’s rights by the male dominated society. Therefore certain general as well as specific provisions were incorporated for the protection and improvement of the women. Thus Article 15(3) declares that nothing in this article shall prevent the state from making any special provision for women and children. The courts have also upheld the validity of many special provisions favoring the interests of women. However in the case of Muslim women the law is to be first tested on the touchstone of Muslim personal law. So there are child marriages, unilateral divorce (Talaq) and polygamy in the Muslim community. The Muslim women get maintenance only up to the iddat period and they are excluded from the purview of Section 125 of CRPC. Therefore the Muslim women get neither the protection from the State nor are they safeguarded by their own highly patriarchal personal law.
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While the Christian and Muslim women are still being governed by their Canon and Islamic Laws, the progress of Hindu women after independence was so rapid that they achieved complete gender equality in the matter of property rights. The property rights of women belonging to other religions are unequal and unfair. Hindus, Sikhs, Buddhists and Jain are governed by one code; Christians are governed by another code enacted by the British for the British Christians in India. Muslims do not have a code regulating property rights. Christian and Parsi law blood relatives are preferred. Further the absurdity is that same rule applies to Hindu male i.e., when he dies, his blood relations are given preference and his wife’s relatives do not even figure in the order of succession despite the manner in which he may have acquired the property but when she dies, the property can be claimed by even distant relative of the husband and not by her own parents. A woman would prefer her blood relations to her husband’s relatives to be her heirs and this provision goes against the reciprocity of inheritance as the entire group of husband’s heirs howsoever remote have been made her heirs but she is not entitled to inherit from them. With more and more women becoming economically independent, socio-economic changes warrant corresponding changes in the law on the subject as well. 1. ORIGIN OF ISLAM IN INDIA
Islam was brought to India by the Arab Traders and the Muslim Sultans who invaded India in the 7th century. Some of the traders from Arabia settled down along the Malabar Coast in the 8th century and adopted the local customs and practices and they were called Mappilas who constituted the first community who embraced Islam. Besides this, conversion to Islam took place enmass during the Mughal Period. The Muslim invaders gave an option to Indians to choose between death and Islam. They brought into their kingdom Muslim mercenaries, businessmen and slaves from different parts of the world like Russia, Afghanistan, Turkey, Arab countries and Africa. These people remained in India and married local Indians and converted them to Islam. Since they were traders they mastered the Law of Contract. They applied the basic principles of contract to marriage also. This led to the formation of definite rights of women regarding their property102.
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With the advent of British Rule in India, they made distinct personal laws for the Hindus and Muslims. It was Hastings who reserved the law of the Quran to the Muslims and the law of the Shastras to the Hindus: That in suits regarding succession, inheritance, marriage and caste and all religions usages and institutions, Mohammedan law with respect to Mohammedans and Hindu law with regard to Hindus are considered as the general rules by which judges are to form their decisions. This classification is erroneously made on the belief that there existed only two religions in India, The Hindus and the Muslims. The Muslims later were divided into two major divisions Shias and Sunnis. Hindus also divided into different groups like Sikhs, Jains, and Buddhists. After creating exclusive personal laws for the two major communities, they adopted the principle of non-interference and kept themselves away from reforms of these religion based personal laws because the British did not want to injure the religious sentiments of the community in India. The Second Law Commission pointed out in its report that personal laws being religious in nature should not be interfered by an outside agency. The State even after independence continued the same non-interference policy towards the personal laws of different Communities. Later in 1956 only the Codification of Hindu Law had been done by the Parliament in a piece meal manner. However the first legislative reform was made in the Muslim Law in 1913 by enacting the wakfs Act. This was to undo the effect of the Privy Council ruling106 that wakfs which were founded for aggrandizement of family or gifts or Charity which were illusory or wakfs which were merely nominal were void. The Muslim took this dictum as inconsistent with the true view of Shariat. The Communities like the Khojas, Memons, Vohras had followed the Hindu law and the courts also administered Hindu law to these converted Muslims. Therefore in 1937 the second reform was introduced by enacting the Shariat Act 1937 and all different factions of Muslims were brought under Shariat Act. 2. SHARIAT AND THE PROPERTY RIGHTS OF MUSLIM WOMEN
The Muslim Jurists gave much significance to the laws of inheritance and they were never tired of repeating the saying of the prophet. The Prophet said that learn the laws of inheritance and teach them to the people for they are one-half of useful 37
knowledge and modern authors have admired the system for its utility and formal excellence. Macnaghten says that in these provisions we find ample attention paid to the interests of all those whom nature places in the first rank of our affections and indeed it is difficult to conceive any system containing rules more strictly just and equitable. The Muslim law of inheritance consists of two distinct elements, the custom of ancient Arabia and rules laid down by Quran and the Founder of Islam. The Koranic reform came as a superstructure upon the ancient tribal law. Many of the prevailing, social and economic inequalities were corrected for that reason Koran may be referred to as an amending Act. With the advent of Islam and the teachings of prophet, the status of women slowly improved. The prevailing notion that women were inferior to men had been dispensed. Quran asserted the dignity of women and holds the view that man and woman are equal and they complement each other. The prophet insisted the followers that female children should be treated exactly on line with the male issues. During the pre-Islamic period daughters were looked upon with frown and they were treated as an economic and social burden. Instead the male members of the family enjoyed respect and there were glaring differences in the upbringing of sons and daughters. It is in this respect that one should appreciate the contributions of Islam to the well being of women. Islam removed all the yokes on women. The practice of burying girls alive was looked upon as a crime. Quran also refers to the reactions of the parents up on the birth of a girl and condemns the parents who become sad with inward grief. The sayings of the prophet also send the message that a girl should not suffer injustice or inequality. Moreover he who has a daughter and does not bury alive or insult her and does not prefer son to her, Allah will enter him into paradise. Unlike the Christian teachings, Islam does not blame women for Eve’s mistake. Therefore every newborn child carries within himself an innocent upright nature. This concept contradicts the Christian belief of inborn sin. Islam teaches that no sin is inherited by a child. Both Adam and Eve disobeyed Allah’s orders, yet they were forgiven because they repented. 3. PROPERTY RIGHTS OF MUSLIM WOMEN UNDER THE CUSTOMARY LAW
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In pre-Islamic Arabia the law of inheritance was based on comradeship-inarms and hence even wife and children were excluded from inheritance. In fact the law of inheritance was based on the principles of agnatic preference and exclusion of females. Thus a daughter or a sister or daughter’s son or sister’s son could not succeed to the property. It is evident from this that before the advent of Islam women were not only deprived of their right to inheritance but their very destiny was in the hands of her husband’s clan or with her relatives. In the pre-Islamic society males enjoyed upper hand over females in matters related to inheritance. When a man lost his life, his heir would claim the right over the widow and marries her. After marriage, he denies her the right to claim the part of inheritance constituted by the dowry. He can also take the dowry and ask another man to marry her. Further fatherless children never inherit, instead they were mistreated and not looked after well and young girls would become victims of sexual abuse. However the prophet totally reformed the pre-Islamic law of inheritance without abrogating all the customs of the pre-Islamic Arabia. He retained in their original form many Arabian customs which did not conflict with the basic tenets of Islam. The prophet removed certain economic and social evils then prevalent. For example, in pre-Islamic Arabia, women had no right to inheritance. So Islam made husband or wife an heir. Females and cognates were made competent to inherit. Parents and ascendants were given the right to inherit even when there were male descendants. As a general rule females were given one half the share of a female. Thus Islam gave a share to women who were denied a share in pre-Islamic Arabia. The pre-Islamic Arabs were against the inheritance to woman because of her weakness. She is not capable of doing acts of defense and bravery. Hence distant males of the family inherited the property. When Thabit, the well-known poet of the Arabs died leaving behind him a wife and few daughters, the sons of his uncles seized all his property and spared nothing for his wife and daughters. The widow complained to the prophet. Then the prophet recited to them the verse that was revealed to him. So Quran created
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inheritance rights for women at time when no such rights existed. The daughter gets half the share of the brother. Although Islam granted woman the right to inheritance, her share is by no means fair and equal to that given to men. The brother takes twice his sister’s share. This has been looked upon as discrimination against women. The woman is given a lesser share because Quran has assured inheritance to women not only as daughters but also as mothers and wives. Moreover, in Islam the husband had to take care of his wife even if she is wealthy enough to maintain herself. Legally she is entitled to claim maintenance. At the same time she is not obligated to spend any of her wealth on the household. Again at the time of marriage, the Muslim women receive Mehr which she is free to use, spend or invest it in any way she likes. Therefore as a wife she adds to whatever she receives through inheritance in her capacity as daughter and that she does not have to support either herself or her children. Therefore the position of a Muslim woman is secure as far as inheritance is concerned. Their financial situation is completely guaranteed by the Islamic law. However in practice, the divine rules regarding women’s inheritance are violated and overlooked by Muslim societies. Very often they are forced to give up their share for the benefit of male members of the family. This is particularly the case where women are married to wealthy men. Their share is automatically written off and would be absorbed by the male relatives. If they refuse to do it they will be accused of being selfish, greedy, inconsiderate and irresponsible. 4. MUSLIM LAW OF WILLS AND PROTECTION OF FAMILY MEMBERS
In the Pre-Islamic times a man had an almost unlimited power of disposing of his property, but as the Quran has laid down clear and specific rules for the distribution of the inheritance it was thought undesirable for man to interfere with god’s ordinances. Therefore the absolute testamentary power of the Muslim has been restricted to one-third of his property. The reason is that for a musalman a Will is a divine institution since its exercise is regulated by the Quran. It gives the testator the means of correcting to a certain extent the law of succession and of enabling some of those relatives who are
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excluded from inheritance. At the same time the prophet had declared that the power should not be exercised to the prejudice of the lawful heirs. Thus the Muslim law of Wills is a compromise between the divine rule and the moral duty of a Muslim. He doesn’t want to interfere with the divine law, at the same time he is duty bound to make arrangements for the distribution of his property after his death. However under a valid custom a Muslim may be allowed to dispose of his entire property under Will because the Shariat Act 1937 does not apply to Wills. A bequest of more than one-third may be done by the consent of heirs. The rationale behind the rule is that the limitation of the testator’s power of disposition is entirely for the benefit of the heirs and if they do not want it they are free do to so.
5.MUSLIM WOMEN’S RIGHT TO MEHR
The inheritance rights of women under Islamic law can be understood best if they are examined in the larger context of property rights of women with in a marriage. The law of marriage in a way is a law of property settlement rather than defining sexual morality. Though the Muslim law of inheritance protects women’s rights better than the law, in the matter of matrimonial law, Hindu law is more favorable to women than the Muslim law which permits Triple Talaq and Polygamy. However Islamic law is very progressive since it permits dissolution of marriage either by consent or by providing for irretrievable break down of marriage. Only in the latter half of the twentieth century the British Matrimonial Jurisprudence accepted the concept of divorce by mutual consent. This was included into Hindu law in 1976. The Divorce Act which governs Christian marriages recognized this concept only in 2001. Another characteristic feature of Muslim matrimonial law is the Quranic right of Mehr: Dower / Mehr give Muslim women property rights. Dower is a payment whether in cash or as property which the husband pays (known as prompt dower) or promises to pay (deferred dower) to the wife. Dower is for wife’s use and may be disposed as she wishes. One of the ways in which women can empower themselves is through the Islamic right of a reasonable dower without fear of social consequences. Mehr in a way provides 41
for future security for the woman at the time of marriage. There is not a parallel provision in any other legal system. All provisions of dissolving a marriage become unjust to women if they are not providing economic protection to women. The right of the wife to receive Mehr constitutes a salient feature of Islamic law. This concept of Mehr gives the Muslim marriage the status of a civil contract. Mehr is in turn looked up on a token of respect towards women. Whatever may the Mehr, monetary or not in law it is an exclusive property of the wife and not of her parents or guardians and it removes the disability suffered by women under the law of inheritance. Since it is a Quranic right the husband can give a particular house itself as Mehr. The woman will be entitled to this property or its monetary value. If the husband refuses to pay the prompt Mehr upon marriage, the woman can refuse fulfill her marital obligations including cohabitation. She is not bound to obey any of his commands, she is entitled to live separately and claim maintenance from her husband during this period. In addition to that she is entitled to talaq – tafwiz in the case of non-payment of Mehr. The superior position of women under Islamic law can be ascertained only if we compare it with the status of women under other contemporary legal systems. Under Roman and British Legal systems of this period, women lost their rights to acquire, hold and manage separate property upon marriage. The Roman law of marriage owed its roots to the Judaic law and is based on the concept of a patriarchal family consisting of wives, sons and slaves. Under the British system upon marriage the woman loses her legal existence resulting into her legal death. All her property belonged to her husband and he could only use it be even alienate it without her consent. The husband’s right to his wife’s property was held in such high esteem that even after betrothal, if the woman alienated her property without the consent of the groom he could sue her for fraud. In fact all the key Islamic legal materials generally support women’s right to acquire, hold, use, administer and dispose of property. A Muslim woman possesses independent legal, economic and spiritual identity and independence. The Quran notes that women shall be legally entitled to their share and that to men is allotted what they earn, and to woman what they earn. Only if women choose to transfer their property can
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men regard it as lawfully theirs. The Islamic laws supporting property rights of women are drawn from a variety of fields such as marriage, dower, inheritance and maintenance. Further a quotation from Baer, 1983:9 is worth mentioning in this context. He says that (History)…shows no doubt, that (Muslim) women were property holders a fact which has been pointed out for various Islamic societies and should be reiterated here… that this certainly was not the case in many other civilizations including many western societies. The question is whether it also disapproves the view of the subservient role of women in traditional Islamic society………. It is also pertinent to note here that the Married women’s property Act was passed in Britain only in the year 1860, whereas more than 1300 years earlier that right was clearly established in Islamic law “What ever men earn, they have a share in that” III. DISPARITY IN THE STATUS OF WOMEN IN THEIR PERSONAL LAWS DUE TO DISCRIMINATION ON THE BASIS OF RELIGION
India which is a multi religious multi cultural society has given to its citizens an opportunity for their complete development irrespective of their sex, caste, religion or race by enshrining the various fundamental rights in part III of the Constitution. Despite this, religious precepts always superseded the beneficial pragmatic and humanistic international and national laws of the country. The constitutional mandate of non discrimination against any person on the grounds of religion given under Article 15(1) has still not been enforced totally even after the promulgation of the constitution 66 years ago. The property rights of Christian women are even now a distant dream because of the strong religious precepts, church teachings and the retention of the Common law concept of subjugation of women by making them a non-entity after marriage. The church always insisted on the obedience of women to her husband. The Church perpetuates patriarchy and subjugation of Christian women. To add to that the legislature has not taken any steps to control the testamentary capacity and also to prevent the execution of release deeds at the time of marriage whereby the daughters are prevented from claiming their share under section 37 of the Indian Succession Act 1925. 43
Further the streedhanam given to the daughter at the time of marriage is to be handed over to the Father –in law or to the husband. This is in fact a reflection of the Common law concept of Covertue under which wife becomes a non-entity. The ulterior motive behind this is to keep the women economically dependent on the husband’s family and to restrict her freedom. Hindu women had also this traumatic experience and they were also kept under subjugation by denying them property rights. Women of the ancient period did not have any right to hold, acquire or dispose of property. It was clearly laid down in the Rigveda that a son born of the body does not transfer wealth to sister.Married daughters living with their husbands could inherit from their father only when they had no brother.The position of the wife of the Vedic age was also highly condemnable. There was no check on the tyranny of man over women. The society was highly patriarchal and masculine. The household was ruled by the husband who wielded absolute control over all other members of the family. Women were treated as property and upon marriage dominion over them was transferred from the father to the husband. Neither the daughter nor the wife of this period enjoyed any legal status which means she could neither hold nor inherit property. However the status of Hindu women underwent radical change with the enactment of the Hindu Succession Act 1956. It is apt to repeat the observation of the Supreme Court in Tulsamma v. SheshaReddy. The Court observed that the shackles placed on the Hindu women over her property have been broken by this act and her status has been brought on par with men. Further the 2005 (Amendment) Act wiped away all the inequality that was retained in the 1956 Act thereby conferring an enviable status to the Hindu Women though it is on paper. It is pertinent to note here Christian women of Kottayam District also hail from families having ancestral properties. Yet they do not acquire any birth right, Instead very often they are sent to matrimonial homes after giving a nominal amount as streedhanam with this the whole tie with the natal family will be cut off. She has to depend on her husband for the rest of her life. In other words she has to live like a slave, surrendering all her liberty, dignity and self-esteem. She gets 1/3 of the share of husband’s property only 44
when she becomes a widow. Besides this she has to hand over the stridhanam to husband or to the father-in-law. In this context we should appreciate the contributions of Islam to the well being of women. Islam removed all the yokes on women. Quran asserted the dignity of women and holds the view that man and women are equal and they complement each other.The Muslim women were also denied property rights under the pre-Islamic customary laws; wife and children were excluded from Inheritance. In fact the law of inheritance was based on the principles of agnatic preference and exclusion of females. Thus a daughter or a sister or a daughter’s son or sister’s son could not succeed to the property. In other words before the advent of Islam women were not only deprived of their right to inheritance but their very destiny was in the hands of her husband family or with her relatives. In the pre-Islamic society males enjoyed upper hand over females in the matter of inheritance. But the prophet totally reformed this customary law of inheritance and made husband or wife an heir. Females and Cognates were made eligible to inherit. Thus Islam gave women a share which was denied to her in pre-Islamic Arabia. Even though she is given a share, she is treated unequally by giving her half the share of her brother. Muslim women do not have equal right regarding marriage or divorce. Repeated uttering of the word Talaq could make a Muslim woman a destitute. However the women do not have such rights. Besides this, the practice of polygamy adds to the misery of Muslim women. Hence because of polygamy and Triple Talaq the Muslim women are more vulnerable than their counter parts in other religions However with regard to inheritance rights she stands superior to Christian women because the Quran assures her a share although not equal to that of her brother. Quran compensates it by giving her right to Mehr which she can keep with her and claim maintenance from the husband even if she is rich. An analysis of the property rights of Christian , Hindu and Muslim women point towards the fact that the status of Christian women is the most vulnerable as far as property rights are concerned. The Christian women are deprived of equal rights to parental property because of the continuance of the dowry system under Section 28 of the 45
repealed Travancore Christian Succession Act 1916 which provided that the male shares shall be entitled to have the whole of the interstate’s property divided equally among themselves subject to the claims of the daughter for streedhanam. Section 29 further provides, the female heirs or the descendants of the deceased female heirs will be entitled to share in the intestate’s property only in the absence of the male heirs. These two rules of succession are still being continued in the Catholic community of Kottayam District and Kannyakumari District even after its repeal following the verdict of the Supreme Court in Mary Roy v. State of Kerala. Further, the Christian families with ancestral properties still continue the custom of partitioning the properties among the members of the family. Here also a daughter who has been given streedhanam will be excluded from partition. It is to be noted here that the father / testator can disinherit a daughter through a Will also. These two practices are still unabashedly going on in the Catholic families. Meanwhile the Hindu personal law has undergone changes through a continuous process of codification. The state is continuing its neglect towards the Christian women who are still being governed by the law of Israel, religious precepts and customary practices that are repugnant to the constitutional mandate of nondiscrimination and the principles of non-discrimination enunciated by CEDAW. It can be rightly added that Christian women are suffering from double discrimination, the discrimination on the basis of religion and discrimination on the basis of sex. The Constitution of India recognizes equality of status and in fact provides for certain provisions under the chapter on fundamental rights more favourable to women but in actual practice they are observed more in breach than in compliance. This is absolutely true in the case of Christian women. It is worth quoting here a passage cited by Mr. Fali Nariman referring to the U.S. Constitution Congress woman said: “We the people” a very eloquent beginning. But when that document was included on 17.09.1787, it was not included in that ‘we the people’ I feel somehow for many years that George Washington and Alexander Amialton just left me out by mistake. But I realize that it is through the process of interpretation and court decision that I have been finally included in ‘we the 46
people’. The Christian women will acquire equal status only if she is freed from Church influences, patriarchal family system, of restricting the practice of execution of release deeds and testamentary capacity of the testator. CONCLUSION An analysis of the inheritance rights of the Christian, Hindu and Muslim women brings forth the reality that only the Christian women alone are deprived of the right to inherit a share of the ancestral property. This is the mere callousness of the Legislature. The international Conventions on women always focus on women’s inheritance rights. However neither the community nor the Church would ever take any step to plug the existing loopholes in the Indian Succession Act 1925 because they are up in arms against women inheriting property. The Law Commission also has been enthusiastic in the reforms of Hindu Succession Law. No such enthusiasm is shown in reforming Christian Personal Law. In tune with the Law Commissions recommendations, even the Government has made an effort to make reformatory laws in Hindu Succession, though it is not implemented effectively. To make matters worse Christian women are still being controlled by the Church through its Canon laws which ensure women’s subjugation and subordinate status. Certain rights having been denied to women on the basis of gender are now slowly been granted to them by the legislative and judicial machinery of the state. Landmark legislation has been brought in wherein daughters have now been granted coparcenary rights as also the liabilities, more female heirs have been promoted from Class II to Class I, thereby making them primary heirs, provisions granting partition right restricting only to males in the dwelling house which reiterated traditional patriarchal concepts towards women have now been deleted thus giving rights also to females to ask for partition in the dwelling house and provisions exempting agricultural holdings from HSA, 1956 has been deleted thus removing the gender inequalities in the inheritance of agriculture land. Bombay High Court while discussing the constitutional validity of provisions dealing with the devolution of male and female dying intestate under HSA, has rightly held that such provisions show discrimination between Hindu men and women, therefore they are 47
unreasonable thus, unconstitutional and ultra vires as being violative of Article 15(1) of the Constitution of India. Law as it is applied in India today shows a positive reform with regard to the position of females and clearly shows that rules of personal law based on religion are not above reform in order to bring them into conformity with social and legal change. The National Common Minimum Programme of the then Government (20042009) enunciated that complete legal equality for women in all spheres of life will be made a practical reality, especially by removing discriminatory legislation and by enacting new legislation that gives women, for instance, equal rights of ownership of assets like houses and land. Women's equality as delivered by the courts can only be an integration into a preexisting, predominantly male world . The High Courts have at times taken firm stand of holding certain provisions to be discriminatory on basis of sex and declared to constitutionally ultravires but still lot needs to be done. Though the courts may be well meaning and earnestly intend to uphold equal rights for women, they can only reflect the shared life experience of individuals; this takes a largely male hue, not only because the judgment-deliverers are predominantly male, but also because society systemically supports male supremacy and this systemic slant shades the thought processes that lie behind laws too, and the courts apply the laws in their judgments .The law of the public world must be reconstructed to reflect the needs and values of both sexes, change must be sought from legislatures rather than the courts. The codification of the old Hindu law has not kept pace with the constitutional mandate of gender equality and in removing gender disparity completely. With the increase in social integration, economic independence, reform movements, there needs a further call for the improvement of the woman's position in the Hindu society. As independent India relies heavily on legislation to bring in social reform and ensure removal of inequality and discrimination, the necessity is to review the present succession laws and to bring the position of women at par with men.
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