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Report No. 174

The report on the Status of Women in India (1971-74) reveals that the Hindu Code Bill, 1948, as amended by the Select Committee had in fact suggested abolition of the coparcenary i.e. the male right to property by birth, and its conversion to the the Dayabhaga system where the daughters get equal shares with the brothers as there is no right by birth for the sons. But the traditional resistance was too strong. Further, the case for a daughter's share is often turned down on the ground that there is hardly a case of a daughter claiming equal rights to parental family property in view of the over-weighing consideration of amity with the family and social disapproval of such a claim.

Thus the law by excluding the daughters from participating in coparcenary ownership (merely by reason of their sex) not only contributed to discrimination against females but has led to oppression and negation of her fundamental rights guaranteed by the Constitution. As such, the State has failed to bring about a suitable legislation as required by the Constitution. It is law that can contribute to overcoming this oppression by creating a legal order that treats females on equal footing. Legislation that on the face of it discriminates between a male and a female must be made gender neutral.

Thus, there is little doubt that radical reform of the Mitakshara law of coparcenary is required so that and there should be equal distribution of property not only with respect to the separate or self-acquired property of the deceased male but also with respect to his undivided interest in the coparcenary property. This should be distributed equally among his male and female heirs, particularly his son and daughter. This will go a one way in eradicating the evils of the dowry system prevailing in our society and award a status of honour and dignity to a daughter at least in her family of birth.

It is a matter of satisfaction to note that five states in India, namely, Kerala, Kanataka, Tamil Nadu, Andhra Pradesh and Maharashtra have taken cognisance of the fact that social justice requires a woman should be treated equally both in the economic and social sphere. Consequently these states being of the view that the exclusion of daughters from participating in coparcenary ownership merely by reason of their sex was unjust, brought about a change in respect of Mitakshara coparcenary property and extended the right by birth in coparcenary property to the daughters also.

Improving their economic conditions and social status by giving them right by birth equal to that of sons was a long felt social need as it would eradicate the baneful system of dowry by positive measures. The practice of dowry has emerged as a major social evil in contemporary India. The gravity of the social evil is reflected all over in our country. The Dowry Prohibition Act of 1961 passed with the ostensible idea of checking the evil has almost proved to be an ineffective legislation.

As per the law passed by four of these states, (Kerala law being different) in a Joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener by birth becomes a coparcener in her own right in the same manner as the son and has the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim survivorship, and is subject to the same liabilities and disabilities in respect thereto as the son. Of course, this change in the law is prospective and daughters married prior to the coming into force of the law have been excluded. A list of the legislation passed by the five states is set out below and the legislation is annexed as Annexed `IV'.

(1) The Joint Hindu Family System (Abolition) Act, 1975, Kerala.

(2) The Hindu Succession (Andhra Pradesh Amendment) Act, 1986

(3) The Hindu Succession (Tamil Nadu Amendment) Act,1989.

(4) The Hindu Succession (Karnataka Amendment) Act,1994.

(5) The Hindu Succession (Maharashtra Amendment) Act, 1994

One redeeming feature of these State enactments is that they are more or less couched in the same language, though the Kerala model is different. The Kerala Joint Hindu Family System (Abolition) Act, 1975 abolished the right of birth of males under the Mitakshara as well as the Marumakkattayam law, following the Report of the Hindu Committee in connection with the Hindu Code Bill Section 3 of the Kerala Act States that after its commencement, a right to claim any interest in any property of an ancestor, during his or her life time founded on the mere fact that the claimant was born in the family of the ancestor, shall not be recognised.

Thus the Act is wholly prospective and fails to confirm rights on daughters in the existing coparcenary property unlike the Andhra model legislation. Section 4(i) of the Kerala Act lays down that all the members of a Mitakshara coparcenary will hold the property as tenants-in-common on the day the Act comes into force as if a partition had taken place and each holding his or her share separately.1 The major drawback in the legislation is that it fails to protect the share of the daughter from being defeated by the making of a testamentary or other disposition. The approach of the other State Legislature is strikingly different. It elevates a daughter to the position of a coparcener in a Mitakshara coparcenary i.e. succession by survivorship.

1. B. Sivaramayya, "Coparcenary Rights to Daughters Constitutional and interpretational issues" (1997) 3 SCC(J), page 25.

The above mentioned state amendments to the Hindu Succession Act 1956, thus considerably altered the concept of the Mitakshara coparcenary. Once a daughter becomes a coparcener she continues to be member of the natal joint family even after her marriage. This has introduced a far reaching change in the law of a joint family. Section 29-A of the Andhra Pradesh, Tamil Nadu and Maharashtra Acts and Section 6A of the Karnataka Act states that in a Joint Hindu 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 a son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as a son.

Under the Amending Acts the eldest daughter like a son will be entitled to be a Karta of the Joint Family, and will by virtue of that position exercise the right to spend the income for joint family purposes and alienate the joint family properties for legal necessity or benefit of the estate. However, under the Shastric Law, a daughter on marriage ceases to be a member of the parental family, but the Amending Acts have changed her position, which is quite alien to Hindu patriarchal notions. Though her position as defacto manager was recognized when mothers acted as guardians of their minor sons after the death of their husbands, the dejure conferment of the right eluded her.

The aspect of succession and joint family fall under the concurrent list entry 5 contained in the Seventh Schedule of the Constitution and both the Centre as well as the States can legislate in this field. It is also noted that the five States mentioned above have passed their enactments with the assent of the President. In fact, it would appear to us that instead of having piecemeal legislations for effecting amendments in the Hindu Succession Act by the states, there is a strong case for a uniform civil code in this area governing atleast Hindu Society and providing equality in the family the child is born into, irrespective of the sex. Our suggestion would tackle not only the evils of dowry but also the longing for a son and would promote the small family norm and check the population explosion.

However, the State Amendments to the HSA have given rise to various questions which need to be answered before a uniform law is brought for all the States. First, the Amendment has excluded the right of a daughter from the coparcenary property, who was married prior to the commencement of the amending Act. The provision is similar in all the Acts and the Karnataka provision is set out as under:

6(d) "Nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1994."

The reasons for exclusion of the already married daughter appear to be sociological and the fact that dowry might have been given at the time of marriage. This dowry might in some cases have included immovable and movable property apart from jewellery. But there may be many cases where nothing has been given and there does not appear to be any cogent reason for discriminating between a married and an unmarried daughter. Excluding a daughter married before the date of commencement of the Amending Acts is wrong in our opinion as all daughters must be treated equally, and at par with sons. By denying a married daughter equal rights in coparcenary property, a large number of females are getting left out of the benefit.

A recent Supreme Court decision in Savita Samvedi v. Union of India, (1996) 2 SCC 380 lends support to the view that a distinction between a married and an unmarried daughter will be unconstitutional. The Supreme Court held that the circular in fettering the choice of a retiring employee to nominate a married daughter is "wholly unfair, unreasonable and gender biased" and liable to be struck down under Article 14 of the Constitution. Referring to the distinction drawn by the circular between a married and an unmarried daughter, Punchhi, J. observed:

"The eligibility of a married daughter must be placed at a par with an unmarried daughter (for she too must have been once in that State) so as to claim the benefit."

The Preamble to the Amending Acts indicates the objective as the removal of discrimination against daughters inherent in the mitakshare coparcenary and the eradication of the baneful system of dowry by positive measures thus ameliorating the condition of women in the human society. This is only a subsidiary or collateral objective and it cannotg be said that the classification drawn by the Amending Acts bears a rational relationship to the objective sought to be achieved.1

1. (1996) 2 SCC 380

Thus clause (d) of Section 6A of the Karnataka Act and clause (iv) of 29A of the other three Acts should be deleted and the main object of the Acts should be only to remove discrimination inherent in the Mitakshara coparcenary against daughters both married and unmarried.

Another reason for having an all India legislation is that if the Joint Family has properties in two states, one which is governed by the Amending Act and the other not so governed, it may result in two Kartas, one a daughter and the other a son. Difficulties pertaining to territorial application of Amending Act and the Lex Situs principle will also arise. Thus is the need for an all India Act or Uniform Civil Code more immediate.

It is important to notice what the impact of Section 6-A of the Karnataka Act and Section 29-A of the other three Acts would be on Section 23 of the Hindu Seccession Act, 1956. Section 23 of the Hindu Succession Act 1956 provides that on the death of Hindu intestate in case of a dwelling house wholly occupied by members of the joint family, a female heir is not entitled to demand partition unless the male heir chooses to do so; and secondly it curtails even the right of residence of a daughter by stating that where such female heir is daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or separated from her husband or is a widow."1

Whether these restrictions will be operative in the case of female coparceners will have to be considered and we must focus on the interpretation of the words `Hindu intestate `and' `heirs' exclude coparceners and coparcenary interests from their scope. Section 6 of the Hindu Succession Act retains the rule of devolution of undivided coparcenary interest by survivorship in spite of the significant change introduced in it. Under the Act it should be clarified that female coparcener will have equal rights as males in the matter of asking for partitioning and allotment to them of their share in coparcenary property. Thus Section 23 from the HSA may need to be deleted altogether.

It is noteworthy, that there is hardly a case of a daughter claiming equal rights to property in the parental family, even though her dowry may not be equal to the son's share. This is due mainly to overweighing consideration of modesty and desire for amity and the fear of social disapproval. A study prepared for the Ministry of Education and Social Welfare on the succession rights of women in Andhra Pradesh, is very revealing in this regard.2

It observed that 38 per cent of women in Godavari and 12 per cent of women in Krishna districts reported considerations of family prestige, 27 percent of the respondents in both the districts reported consideration of getting bad name among relatives and others, for not taking resort to courts of law in getting their due share in property. Cost of litigation, complicated the procedures of law and uneconomic nature of the deal in terms of the cost involved in property are the other reasons stated by the respondents.

1. Proviso to section 23 of HSA.

2. Department of Cooperation & Applied Economics, Andhra University, Agricultural Growth Rural Development and Poverty selected writings of G. Parthasarthy 497 (1998)

In view of the limited assertion of equal rights to property by women, it is necesary to understand that if equality exists only as a phenomenon outside the awareness and approval of the majority of the people, it cannot be realzed by a section of women socialized in tradtions of inequality. Thus there is need to social awareness and to educate people to change their attitude towards the concept of gender equality. The need of the hour is also to focus attention on changing the social attitudes in favour of equality for all by enacting a uniform law. This is what the Law Commission suggests and we have attempted to draft a Bill which is annexed.



Property Rights of Women - Proposed Reforms under the Hindu Law Back




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