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Report No. 174

Property Rights of Women: Proposed Reforms under the Hindu Law

Introduction

1.1 Scope - Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu family. It seems that this discrimination is so deep and systematic that it has placed women at the receiving end. Recognizing this the Law Commission in pursuance of its terms of reference, which, inter-alia, oblige and empower it to make recommendations for the removal of anomalies, ambiguities and inequalities in the law, decided to undertake a study of certain provisions regarding the property rights of Hindu women under the Hindu Succession Act, 1956. The study is aimed at suggesting changes to this Act so that women get an equal share in the ancestral property.

1.2 Issuing of Questionnaire and holding of Workshop - Before any amendment in the law is suggested with a view to reform the existing law, it is proper that opinion is elicited by way of placing the proposed amendments before the public and obtaining their views and if possible by holding workshops etc. The Commission thus decided to have the widest possible interaction with a cross section of society including judges, lawyers, scholars, Non-governmental Organizations (NGO'S) etc. by issuing a questionnaire. Their views were also elicited on several of the provisions introduced by certain State Legislatures regarding the property rights of Hindu women which had been brought about by way of an amendment to the Hindu Succession Act, 1956. The main focus/thrust of the questionnaire (annexed as Annexure I) was to elicit views on three issues namely:-

(i) granting daughters coparcenary rights in the ancestral property; or to totally abolish the right by birth given only to male members;

(ii) allowing daughters full right of residence in their parental dwelling house; and

(iii) restricting the power of a person to bequeath property by way of testamentary disposition extending to one-half or one-third of the property.

1.2.1 The Commission received replies in response to the questionnaire. These replies have been analysed and tabulated and this is annexed as Annexure II.

1.2.2. Aiming at a wider and more intense interaction the Law Commission in collaboration with the ILS, Law College and Vaikunthrao Dempo Trust of Goa, organised a two day workshop on "Property Rights of Hindu Women proposed Reforms" in Pune on 28-29 August, 1999. At this Workshop the Chairman and members of the Law Commission held detailed discussions with eminent lawyers and NGO'S and teachers of ILS Law College, Pune. A Working Paper on Coparcenary Rights to Daughters Under Hindu Law along with a draft bill was circulated. This is annexed as Annexure-III.

1.2.3 The Law Commission has carefully considered all the replies and the discussion at the workshop at Pune before formulating its recommendations to amend the Hindu Succession Act, 1956 with a view to giving the Hindu women, an equal right to succeed to the ancestral property.

1.3 - The Background Since time immemorial the framing of all property laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being. Prior to the Act of 1956, Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis.

As the country is vast and communications and social interactions in the past were difficult, it led to a diversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex.

1.3.1. A woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. In a patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son.

1.3.2 Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparcenars, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth.

1.3.3 The Mitakshara law also recognises inheritance by succession but only to the property separately owned by an individual, male or female. Females are included as heirs to this kind of property by Mitakshara law. Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila sub schools of Mitakshara recognised only five female relations as being entitled to inherit namely - widow, daughter, mother paternal grandmother, and paternal great-grand mother.1

The Madras sub-school recognised the heritable capacity of a larger number of females heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who are expressly named as heirs in Hindu Law of Inheritance (Amendment) Act,1929.1 The son's daughter and the daughter's daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal to women, recognised a nunmber of other female heirs, including a half sister, father's sister and women married into the family such as stepmother, son's widow, brother's widow and also many other females classified as bandhus.

1. Mulla Principles of Hindu Law, (1998, 17th Edn., Ed by S.A. Desai), P 168

1.3.4 The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint property is recognised. It lays down only one mode of succession and the same rules of inheritance apply whether the family is divided or undivided and whether the property is ancestral or self-acquired. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father's life time. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares alongwith their brothers.

Since this ownership arises only on the extinction of the father's ownership none of them can compel the father to partition the property in his lifetime and the latter is free to give or sell the property without their consent. Therefore, under the Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs dies, his heirs, including females such as his wife and daughter would become members of the joint property, not in their own right, but representing him. Since females could be coparceners, they could also act as kartas, and manage the property on behalf of the other members in the Dayabhaga School.

1.3.5 In the Marumakkattayam law, which prevailed in Kerala wherein the family was joint, a household consisted of the mother and her children with joint rights in property. The lineage was traced through the female line. Daughters and their children were thus an integral part of the household and of the property ownership as the family was matrilineal.



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