Report No. 174
2.4 Inequalities and Anomalies Discriminating Women - Despite the Constitution guaranteeing equality to women, there are still many discriminatory aspects in the Hindu law in the sphere of property rights. In our society maltreatment of a woman in her husband's family, e.g. for failing to respond to a demand of dowry, often results in her death. But the tragedy is that there is discriminatory treatment given to her even by the members of her own natal family.
2.4.1 In the Hindu system, ancestral property has traditionally been held by a joint Hindu family consisting of male coparceners. Coparcenary as seen and discussed earlier in the present work is a narrower body of persons within a joint family and consists of father, son, son's son and son's son's son. A coparcenary can also be of a grandfather and a grandson, or of brothers, or an uncle and nephew and so on. Thus ancestral property continues to be governed by a wholly partrilineal regime, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. Since a woman could not be a coparcener, she was not entitled to a share in the ancestral property by birth. A son's share in the property in case the father dies intestate would be in addition to the share he has on birth.
2.5 - Again, the patrilineal assumptions of a dominant male ideology is clearly reflected in the laws governing a Hindu female who dies intestate. The law in her case in markedly different from those governing Hindu males. The property is to devolve first to her children and husband: secondly, to her husband's heirs; thirdly to her father's heirs, and lastly, to her mother's heirs.1
The provision of section 15(2) of HSA is indicative again of a tilt towards the male as it provides that any property she inherited from her father or mother should devolve, in the absence of any children, to her father's heirs and similarly, any property she inherited from her husband or father-in-law, to her husband's heirs. These 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.
1. Ratna Kapoor and Brenda Cossman, Feminist Engagements with law in India, Subversive sites, 1996, p.134
2.6 - The question is whether, the Hindu Succession Act actually gave women an equal right to property or did it only profess to do so? Significantly, the provisions regarding succession in the Hindu Code Bill, as originally framed by the B.N.Rau Committee and piloted by Dr.Ambedkar, was for abolishing the Mitakshara coparcenary with its concept of survivorship and the son's right by birth in a joint family property and substituting it with the principle of inheritance by succession. These proposals met with a storm of conservative opposition.
The extent of opposition within the Congress or the then government itself can be gauged from the fact that the then Law Minister Mr.Biswas, on the floor of the house, expressed himself against daughters inheriting property from their natal families. Sita Ram S. Jajoo from Madhya Bharat, identified the reason for the resistance accurately, when he stated: "Here we feel the pinch because it touches our pockets. We male members of this house are in a huge majority. I do not wish that the tyranny of the majority may be imposed on the minority, the female members of this house."1 However, the tyranny of the majority prevailed when the Bill was finally passed in 1956. The major changes brought were:-
1. The Constituent Assembly of India, (Legislative) Debates Vol.VI 1949 Part II,
(1) Retention of the Mitakshara coparcenary with only males as coparceners;
(2) Coparcener's right to will away his interest in the joint family property. (This provision was unexpectedly introduced by an amendment by the then Law Minister Mr. Pataskar in the final stages of the clause-by-clause debate when the bill was to be passed, in 1956. It was widely perceived and pro-claimed, even in the contemporary press, to be a capitulation by government.);
(3) Removal of exemption of Marumakkattayam and Aliyasantana communities; that is, virtual destruction of the only systems in which women were the equivalent of full coparceners; and
(4) Alteration of original provision that a daughter would get a share equivalent to half the share of a son in self-acquired property of the father who died intestate.2 The Select Committee decided to make her share full and equal to that of a son.
2. Madhu Kiswar, "Codified Hindu Law Myth and Reality" Eco & Pol. Weekly, No.33 Aug 1994.
2.7 When Dr.Ambedkar was questioned as to how this happened in the Select Committee he said: "It was not a compromise. My enemies combined with my enthusiastic supporters and my enemies thought that they might damn the Bill by making it appear worse than it was.3
3.The Constituent Assembly of India (Legislative) Debates Vol.VI 1949 Part II, p.841
2.8 The retention of the Mitakshara coparcenary without including females in it meant that females can not inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes his share and females get nothing. Only when one of the coparceners dies, a female gets a share of his share as an heir to the deceased. Thus the law by excluding the daughters from participating in coparcenary ownership (merely by reason of their sex) not only contributed to an inequity against females but has led to oppression and negation of their right to equality and appears to be a mockery of the fundamental rights guaranteed by the Constitution.
2.9 Another apparent inequity under the Hindu Succession Act as per Section 23, is the provision denying a married daughter the right to residence in the parental home unless widowed, deserted or separated from her husband and further denying any daughter the right to demand her share in the house if occupied by male family members. This right is not denied to a son. The main object of the section is said to be the primacy of the rights of the family against that of an individual by imposing a restriction on partition. Why is it that this right of primacy of family is considered only in the case of a female member of the family?
2.10 The National report on the Status of Women in India recommended that this discrimination in asking for a partition be removed so that a daughter enjoys a right similar to that of a son.1
1. Status of Women in India, A Synopsis of the Report of the National Committee (1971-74) p.53-54
2.11 However, the Supreme Court by its recent judgment in Narashimaha Murthy v. Sushilabai11, AIR 1996 SC, 1826. held that a female heir's right to claim partition of the dwelling house of a Hindu dying intestate under section 23 of the HSA will be deferred or kept in abeyance during the lifetime of even a sole surviving male heir of the deceased until he chooses to separate his share or ceases to occupy it or lets it out. The idea of this section being to prevent the fragmentation and disintegration of the dwelling house at the instance of the female heirs to the detriment of the male heirs in occupation of the house. thus rendering the male heir homeless/shelterless.
2.12 A similar instance of inequity created by law was the establishment of the new right to will away property. The Act gave a weapon to a man to deprive a woman of the rights she earlier had under certain schools of Hindu Law. The legal right of Hindus to bequeath property by way of will was conferred by the Indian Succession Act, 1925. None of the clauses of 1925 Act, apply to Hindus except wills.
2.13 A rule firmly established before HSA was that a Hindu cannot by will bequeath property, which he could not have alienated by gift inter- vivos. A coparcener under Dayabhaga law, however, could by gift dispose of the whole of his property whether ancestral or self-acquired, subject to the claims of those entitled to be maintained by him. However, a coparcener under Mitakshara law had no power to dispose of his coparcenary interest by gift or bequest so as to defeat the right of the other members. The coparcenary system even restricted the rights of the Karta to alienate property, thereby safeguarding the rights of all members of the family including infants and children to being maintained from the joint family property.
2.14 Although many powers were vested in the karta or male head of the family, who was supposed to administer the property in the interests of all members, yet decisions regarding disposal of the family property were to be taken collectively. Each male had an equal share in the property, but the expenditure was not to be apportioned only to males but also to females. The right to will away property was traditionally unknown to Hindus. It was introduced into the statute by virtue of section 30 of the HSA.
According to the said section any Hindu may dispose of by will or other testamentary disposition any property capable of disposition (this includes his undivided interest in a Mitakshara coparcenary property as per the Explanation) in accordance with the provisions of the Indian Succession Act, 1925. This is ironical as this testamentary right right of his daughter by succession. It can also defeat a widow's right. There is thus a diminution in the status of a wife/widow.
2.15 According to Muslim law a person is restrained from giving away all his property by will. He can only will away a maximum of one-third of his property and the rest has to be divided among the agnatic and Koranic heirs. A person is, of course, not required to make a will.
2.16 The proviso to section 6 of HSA also contains another gender bias. It has been provided therein that the interest of the deceased in the Mitakshara Coparcenary shall devolve by intestate succession if the deceased had left surviving a female relative specified in class I of the Schedule or a male relative" specified in that class, who claims through such female relative. In order to appreciate the gender bias it is necessary to see the devolution of interest under section 8 HSA. The property of a male Hindu dying intestate devolves according to section 8 of the HSA, firstly, upon the heirs being the relatives specified in class I of the Schedule.
However, there are only four primary heirs in the Schedule to class I, namely, mother, widow, son and daughter. The remaining eight represent one or another person who would have been a primary heir if he or she had not died before the propositus. The principle of representation goes up to two degrees in the male line of descent; but in the female line of descent it goes only upto one degree. Accordingly, the son's son's son and son's son's daughter get a share but a daughter's daughter's son and daughter's daughter's daughter do not get anything. A further infirmity is that widows of a pre-deceased son and grandson are class I heirs, but the husbands of a deceased daughter or grand-daughter are not heirs.1