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Report No. 174

3.3 Kerala Model -

The State of Kerala has abolished the concept of coparcenary following the recommendation of the Hindu Law Committee - B.N. Rau Committee (which was entrusted with the task of framing a Hindu Code Bill). The Kerala model furthers the unification of Hindu law and P.V. Kane suporting the recommendation of the Rau Committee stated:

"And the unification of Hindu Law will be helped by the abolition of the right by birth which is the cornerstone of Mitakshara school and which the draft Hindu code seeks to abolish."1

3.3.1 The Kerala Joint Family System (Abolition) Act, 1975 (hereinafter known as the Kerala Act) in section 4(i) of the 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. The notable feature of the Kerala law is that it has abolished the traditional Mitakshara coparcenary and the right by birth.

But in Kerala, the Marumakkattayam, Aliyasantana and Nambudri systems were also present, some of which were matrilineal and these joint families were also abolished. The Kerala Model probably results in maintenance of greater family harmony and appears to be a fair decision as in Kerala both matrilineal and patrilineal joint families existed. If the Joint family was abolished today in the other states then a deemed partition would take place and women not being coparceners would get nothing more. Whereas if they are made coparceners, then they become equal sharers.

3.3.2 However, one common drawback of both the Kerala model and the Andhra model is that it fails to protect the share of the daughter, mother or widow from being defeated by making a testamentary disposition in favour of another, or by alienation. This criticism of course against testamentary disposition can be also used to disinherit a son. The question whether a restriction should be placed on the making of testamentary disposition as in some of the personal laws is another matter in issue.

3.4 - In order to provide women with some better property rights, four states have dealt with the matter by virtue of the Hindu Succession (State Amendment) Acts and Kerala has dealt with it by abolishing the Hindu Joint Family altogether. This has resulted in two different models being in existence i.e. the Andhra model and the Kerala model.

3.5 - Recent reports in some newspapers reveal that the Centre has asked all the states to carry out suitable amendments in the HSA to confer property rights on women in a joint family. "The Department of Women and Child Development has requested various States and Union Territories to draw up necessary legislature proposal to amend section 6 of the HSA, 1956 to give daughters their due share of coparcenary right"2 as already done by States like Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu. It is also indicated therein that the Kerala Government has taken a stand that in view of the Kerala Joint family system (Abolition) Act, 1975, Section 6 of the HSA "does not operate" in that State.

1. M.P.V Kane History of Dharamsastra (Ancient and Medieval Religious and Civil Law), 1946, Vol. III, P. 823

2. PTI Centre and States to amend Hindu Succession Act, The Observer, 7-2-2000; see also The Tribune, 22-3-2000.

3.6 - The subject matter of the laws of succession fall in entry 5 of the Concurrent List of the Seventh Schedule to the Constitution. Therefore, Parliament as well as the State Legislatures are competent to enact laws in this area. In case another State brings some third model of legislation in this field, there is a likelihood of having still more diversity in the law.

This would result in the directive principles of state policy not being adhered to which require the State to endeavour to secure a uniform civil code throughout the territory of India. If we cannot have that for the present we should at least have uniformity amongst Hindus. Accordingly, there is need to have a central law enacted by Parliament under article 246 of the Constitution. In such a situation the law made by these five states would stand repealed to the extent of repugnancy, unless expressly repealed.



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




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