Report No. 136

4.16.4. Why the Bombay-Karnataka-Orissa view that the female heirs should in such a situation be entitled to claim partition deserves to prevail.-

There is no good answer to the vital point made by the Bombay High Court to the effect that if the rights of the female co-owner who inherits the properly along with the male co-owners is curtailed to this extent that even if there is no joint family comprising of male heirs in existence, the female heir cannot claim partition, it will virtually tantamount to taking away from the female heir by another hand what is given to her by the Parliament by one hand.

The Madras High Court view that the female co-owner must suffer this injustice lest the male co-owner will have to suffer is in disharmony and out of tune with the constitutional philosophy of equality between both the sexes and smacks of a pro-male and anti female bias. Surely a female co-owner cannot be denied the essence of the right merely because of her gender even when the reason for the rule has virtually disappeared in the situation where there is only one male co-owner and the argument of preserving the joint family is no longer available. The anachronism, therefore, deserves to be removed by a suitable amendment on the lines indicated hereinafter.