Tracing the process of structuring of a Hindu woman’s right to Inheritance
Ishita Khare comments on the changes brought in the position of Hindu Women’s right to inheritance, coparcenary and property rights vis-à-vis the Hindu Succession (Amednment) Act, 2005 and its historical context. She attempts to offer a comprehensive analysis of the implications of the 2005 Amendment on a Hindu female’s incidents of Coparcenary and her economic stature.
“Women constitute half the world’s population, perform nearly two thirds of its hours, and receive one tenth of the world’s income and less than one hundredth percent of the world’s property.”
Developing countries continue to experiment with egalitarian property rights reforms from Columbia’s Régimen de Capitulaciones Matrimoniales to Vietnam’sDoi Moi reforms, Mozambique’s, Morocco’s 2004 Family Laws and India’s 2005 Hindu Succession Act Amendment. Stranded between convoluted inheritance laws and ambiguous customary diktats, women in India are not only ignorant of their right to inheritance, but believe that they are not meant to hold property. It was believed that through independence, women from noble families go to ruin The offshoots of patriarchy are so deeply entrenched in the Hindu conception of woman that despite being cognizant of the female centric laws of inheritance, many women, especially from rural India, voluntarily deny their right to hold property. The reasoning they furnish- property is a matter regarding the males of the family. This radically flawed perspective is a result of centuries of male domination, pillared by the anti feminist interpretation of the ancient laws by various Hindu lawgivers.
This usually denied but casually granted right was structured to a somewhatconcrete form by various legislations passed by the Government. This was a task of herculean proportions,
1. United Nation’s Report, 1980
2. Rachel Brulé and Hari K. Nagarajan, Jus respicit aequitatem?Evidence from India on the Welfare Effects of Egalitarian Property Rights Reforms
3. Narada, XIII, 30
because remolding the philosophy of Hindu patriarchal society was an Arduum sane Munus, taking almost a century to materialize definitively. The earliest attempt may be traced back to 1865, while latestbeing the Hindu Succession (Amendment) Act, 2005 . This long legislative saga has evidenced many tumultuous turns, and has still to see many more. Denial of the right of a daughter to be a part of the Coparcenary was seen as a blatant discrimination of their rights. Rendered devoid of their inheritance rights, females were bereft of any form of social empowerment, dependent on their male relatives entirely. Ushering remarkable amendments in the Hindu Succession Act 1956 , the Amendment has undeniably elevated the status of females in the Hindu household. From not having a share in their own natal ancestral property to holding shares in two families after marriage, Hindu women have certainly witnessed a phenomenal paradigm shift in terms of proprietary emancipation. The Amendment has improved the economic status of Hindu women, spanning over their membership in the Coparcenary, an abode in the ancestral dwelling house, agricultural rights, and widows being entitled to property after remarriage and conferring the power of testamentary disposition upon women.
This essay attempts to delve into the aspects related to the 2005 Amendment and its implications on Hindu women’s rights to property. Part II talks about the historical conception of Hindu women, while Part III entails the legislative sojourn of female empowerment. Part IV brings to notice the failings of the principal Act of 1956, highlighting the need to amend it. Part VI centres upon the features of the 2005 Amendment Act, later succeeded by the anomalies observed in it. Finally, through Part VII, theconclusionsums up the true effect of the Amendment on the Indian society.
A HISTORICAL HINDSIGHT- HINDU WOMAN
The struggle for equal status for women isn’t peculiar to India. Feminist movements all over the globe stand testimony to the fact that females have always been undermined treated assecondary, yoked citizens. Their inferior status existed not merely in the society but also in the matter of privileges and right. Nowhere were the proprietary rights of women recognized asearly as in
4. Hereinafter referred to as HSAA 2005
5. Hereinafter referred to as the HSA 1956
6. Prof. Khan, H Nazeer, Ambedkar on Gender Equality: Myth and Reality, (2007), p. 173.
India; and were these rightslargely conceded as in our own It becomes imperative to peruse the origin of this reluctance to impart equitable proprietary rights to women.
Hindu matters of inheritance see the joint family system as an inevitable pivot in its mechanism. Before passing of the 1956 Act, these matters were governed by customary laws, displaying wide regional variations. The Mitakshara system by Vijnaneshwara prevailed over almost the whole nation, whereas the Dayabhaga system, by Jimutawahana was followed in Bengal and Assam. Other subschools like Mayukha in Bombay, Konkan in Gujarat and Marumakkattayam or Nambudrisystem inKeralaalso existed. However, concept of Coparcenary was unique to the Mitakshara School, where a son, son’s son and a son’s son’s son acquiredproperty rights by birth. Thus, only males could be coparceners. This was in sharp contrast to the Dayabhaga School, where the rule of succession was followed. The inheritance rights opened for the first time at the death of the father, the sons didn’t have the right by birth. Moreover, the doctrine of survivorship was unique to the Mitakshara School where interest in the joint property of a deceased coparcener devolved upon the existing coparceners of the family.
Women were looked upon as a property to be pawned as chattels and bound by the tie of eternal duty and obedience. Since she is not a coparcener, she cannot be a Karta, nor is she empowered to represent her family. Women enjoyed respectable social status during Vedic and Post-Vedic period. Although she did not possess any proprietary right but, she was treated as a Devi. The right in father’s property was equal for both son and daughter. Vijyaneshwarasaid - “they, who are incompetent to celebrate sacrificial rights, don’t participate in property, but are entitled to food and raiment. Yajnavalkya expressly admitted widows, daughter, mother and the Gotrajahas to the order of succession. If ‘Gotrajah’ (gentile) included both male and female, it
7. Sir Gooroodas Bannerjee, Marriage and Stridhana
8. Law Commission Of India 174th Report On “Property Rights of Women: Proposed Reforms under the Hindu Law”May, 2000
9. Kulwant Gill, Hindu women’s Right to Property in India,21(Delhi1986)
10. Commissioner of Income Tax vs. Govind Ram Sugar Mills AIR 1966 SC 24; Manglal vs. Jayabai AIR 1994 276; Kanji vs. Parmanand AIR 1992 MP 208
11. Sahdeo Singh vs. Ramchabila Singh AIR 1978 Pat 285
12. Ram Awadh vs. Kedar Nath AIR 1976 All 283.
13. Rakesh Kumari “Women’s Right To Property Under Hindu Law – A Socio Legal Study"Ch.1 p.1
14. Atharva Veda 10’85.7
15. Mitakshara, Ch.II
was extremely favorable to the succession of women in general.Brihaspathi also stated that since daughter, like son, springs from the limb of man, how can any other man inherit father’s property while she lives? Manu’s code depicted changed status of women, characterized as obedience to her husband as the beginning, middle and end of duty. He insisted for her perpetual dependence, declaring her incompetent to perform religious ceremoniess. Therefore, her proprietary rights were nominal and hedged with limitations.
LEGISLATIVE EVOLUTION- AD AUGUSTA PER ANGUSTA
Many prodigious efforts were made to impart economic strength to women, thwarted time and again by many who found it preposterous for females toget what is rightfully theirs. The earliest move was the Indian Succession Act, 1865 that postulated that none shall acquire any interest in property of one’s spouse by marriage, nor shall be incapable of acquiring one’s own property This was succeeded by the Married Women’s Property Act, 1874 that laid down thata female had unrivalled powers of disposition over her separate property. Married women belonging to Hindu, Mohammedan, Sikh and Jain communities remained outside the purview of the Act, thus it being futile for almost allfemale population. T.V. Seshagiri Ayyar argued that principles of Hindu Property rights placed more significance upon one’s own descendents (atmabandhus) than father’s descendents (pitrabandhus).
His Bill was not passed, till it was resurfaced by Sir Shanmukham Chetty in 1929. This was baulked at by the traditionalists, as being opposed to the Hindu patriarchal tenets. The Bill took the form of Hindu Law of Inheritance(Amendment) Act 1929 (Act II).This Act just elevated the status of nearer female relatives over distant male relatives regarding separate property of Hindu
16. Manu, IX, 217
17. Brihaspati XXV.56.
18. Dr.S.R.Myneni, Women and Law(2008)
19. Dr.R.Revathi, Law Relating to Domestic Violence1 (2009)
20. Manu, Ch. IX. Verse.10
21. Act X of 1865, Section 4.
22. Section I of Act III,1874
23. The Indian Annual Register, Vol. II (1923).
24. T.V Seshagiri Iyer (1860–1926) was an Indian lawyer and politician who served as a judge of the Madras High Court and member of the Madras Legislative Council
25. Shanmukham Chetty (1892 –1953) was an Indian lawyer, economist and politician who was independent India's first finance minister.
27. Amrita Bazar Patrika p. 5.
male dying intestate. Afterthis, Hindu Women's Right to Property Act, 1937 conferred upon the widow the right to inheritance to the property even when a man died leaving behind a male issue, and in all cases, widows got a limited estate. However the term ‘descendant’ in it had a wide import, leading to ambiguity.
Faced with a storm of private Bills, the government appointed a Hindu Law Committee (Rau Committee)headed by B.N. Rau. It aimed to generate a uniform code of intestate succession for Hindus throughout the territory of India, referred to the Hindu Code Bill. It was regarded as a challenge to the social and cultural structure of the Hindu Philosophy. Sita Ram Jajoo stated: "Here we feel the pinch because it touches our pockets.” Such negative backlashes were neutralized by huge support. It was said that the Bill will not be complete unless it provided for a share to the daughter in Mitakshara coparcener. Pandit Nehru expressed his unequivocal commitmentfor reforms to remove the disparities suffered by Hindu women. Finally, all deliberations paved way for the landmark HSA, 1956,effectual from 17th June, 1956.
Its success can be romanticized by saying that the chrysalis of female proprietary rights underwent the much awaited metamorphosis to give way to a brighter future of women empowerment. Daughter was introduced as an heir at par with the son. The Act abolished the duality of Mitakshara and Dayabhaga systems, establishing a uniform code of succession throughout the Indian Territory. It bestowed absolute power of testamentary disposition upon the females. The concept of limited estate where her right to use her property was subject to manifold impediments was abrogated. Moreover both married and unmarried daughters were
28. The Indian Annual Register, Vol. II (1932).
29. The Modern Review, vol. 62, (1937), p. 220.
30. Rishindra Nath Sarkar, Hindu Women’s Right to Property Act, (1938), p. 3.
31. Rau Committee Report, 1941
32. U.C Sarkar: Epochs in Hindu Legal History, (1958), pp.391- 392.
33. Sitaram Jajoo was an Indian politician from the state of the Madhya Pradesh
34. Supra n.7
35. Anjani Kant, Women and the Law, New Delhi (1997), p. 258.
36. Supra n.7
brought at par with each other. Thus the Act ameliorated the economic interests of women and empowered them considerably.
DEFICIENCIES IN THE PRINCIPAL ACT- AMENDMENT A DESIDERATUM
The Act was welcomed with high applause and higher hopes. However, it was felt that development of inheritance laws for females towards the utopian dream of equality was still a far cry. There were scores of pitfalls in this Act, justifying a need for amending it so as to further the female inheritance rights to a more impartial form. One of the glaring inconsistencies was the unfettered right of testamentary disposition bequeathed by Section 30 of the Act. TheCoparcenary system restricted the rights of the Karta to alienate property, thereby safeguarding rights of all members of the family . The problem of disinheritance of female heirs arose when the legislature gave unrestrained power of testation to disinherit them. The Act gave a weapon to man to deprive her of the rights she had under Hindu Law.
Another foible was section 4(2) of which provided that the state can pass rules “providing for the fragmentation of agricultural holding or for fixation of ceiling or for the devolution of tenancy rights in respect of such holdings.” Regional laws are customary in nature and usually loaded heavily with patriarchy, proving to be gender discriminatory. These were aggravated by a third defectthat daughters had no right in the ancestral property by birth. The HSA had still not deleted the doctrine of succession by survivorship. While our Constitution epitomizes equality for all, HSA 1956, by denying inheritance rights to daughters stuck out like a sore thumb. Thus, it was only in context of the separate property and not the ancestral property of a deceased coparcener that the females had been guaranteed a share. The principle of representation extended to two degrees in the male line of descent; but in the female line it went only up to one degree.The mirage of gender equal proprietary rights in the Act proved to be illusory.
37. Supra n.7
38. B Sivaramayya, Women’s Right of Inheritance, p.31
39. Supra n.7
40. Theirs half the Sky, Editorial, The Economic Times, TNN Dec 17, 2004, 12.35am IST
Fourthly, Section 15 of HSA, there was distinction created between the property inherited by a female from her father and her husband, the former devolving upon her death upon the heirs of her father, while the latter upon her husband’s relatives, provided she died issueless, proved tendentious towards males. Section 15(1) preempted the female’s natal family’s rights to inherit her share upon her death, by the rights of her husband and his family.
Fifthly, Section 23 of the Act exhibiting the same prejudicial approach postulatedthat a dwelling house wholly occupied by the members of the family; the female heirs could not claim partition of it unless the males chose to divide their share. Females had the right of residence only. The National report on the Status of Women in India recommended that this discrimination be removed so that a daughter enjoys a right similar to that of a son. The right of residence was extended only to unmarried, widowed and separated daughters, not married daughters. Thus, incidents of spousal violence or temporary separation rendered the wife bereft of a roof over her head. A further infirmity was that widows of a pre-deceased son and grandson were class I heirs, but the husbands of a deceased daughter or grand-daughter are not heirs. Section 24 of the Act was another specimen of conspicuous partisanship, which said that any heir who is related to an intestate as the widow of a pre deceased son of a pre deceased son or of a brother shall not be entitled to succeed to the property ifon the date the succession opening she re-married. Hence the 1956 Act was impaired with numerous retrograde provisions that frustrated the very aim of consolidating the proprietary rights of women, making it all the more expedient to amend it.
The matters 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 is competent to enact laws upon the subject.
To expedite the way to gender equality, the states of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu amended Section 6 of HSA in 1986, 1994 and 1989 respectively declaring daughters to be a coparcener in joint Hindu family by birth. However, Kerala totally abolished the system of joint family. This gave rise to two models- the Andhra Pradesh Model and the
41. Vijay Sharma, Protection to Women in Matrimonial Home, Deep and Deep Publications, New Delhi (1994), p. 310
42. Supra n.7
Kerala Model. The Andhra Model made daughters a part of Mitakshara Coparcenary by birth, hence leveling the abysmal gap between sons and daughters. They were subject to same rights, duties and incidents of Coparcenary property. She was allotted a share equal to her brother and was given absolute testamentary powers with respect to her property. However, these amendments were criticized on the fact that these rights were only extended to unmarried daughters and daughters married prior the amendment were explicitly excluded , the distinction being unfair and illegal. On the other hand, the Kerala joint Family System (Abolition) Act, 1975 in section 4(1) 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.
HSA AMENDMENT 2005- VICTOR LUDORUM OF THE LEGISLATIVE SAGA
After the state amendments meliorated the position of women, a nationwide need was felt to enact a Central Legislation under Article 246 on synonymous lines. There were two alternates before the Parliament- the Andhra Model or the Kerala Model. As the 174th Law Commission report noted- “The Andhra model does not do full justice to daughters as it denies a daughter, married before the Act came in to force, the right to become a coparcener. We have recommended a combination of the Andhra and Kerala Models as this synthesis is in keeping with justice, equity and family harmony.” The draft Bill was introduced in 2000. This was founded on the 174th Report of Law Commission titled-Property Rights of Woman; Proposed Reforms under Hindu law, of India, (May 2000), later assimilated in the 2004 Amendment Bill. This was assented to and passed by both the Houses of Parliament in August, 2005 and that gave form to the HSAA, 2005, coming into force on 9th September 2005.
The 2005 Amendment has modified, deleted and introduced many favorable laws that are truly conducive to promote female property rights. They are discussed upon individually-
44. R. Mahalakshmi v. A.V. Anantharaman and Ors., 2010 1 AWC(Supp)356SC
45. Supra n.7
1. Deletion of Section 4(2) - this provision of the Act embedded roots of patriarchy all the more deeply, especially in the rural areas. As discussed earlier, it allowed regional customary laws to mandate devolution of agricultural property, tenancy rights and landholding capacity of women. There was no leash on the extent to which these could be gender discriminatory often used as a garb to denounce the rights of women to property. Thus, Section 4(2) was effaced completely off the Act.
2. Changes in Section 6 of the Act-
a) Section 6(1) -Daughter made a Coparcenary - a daughter was made a coparcener by birth in her own right like a son and given same the rights and liabilities post 2005 . She had a right to demand partition and unhampered testamentary disposition rights. Daughters could start a joint family; the antiquated requisite to have atleast one male for the genesis of a Hindu joint family was rendered inoperative, provided they could add a male either by birth or adoption. She was also empowered to become the Karta of the Joint Hindu family.
b) Section 6(2): Incidents of Coparcenary - She now held the property with all the incidents of ownership and disposition- unity of possession and communities of interest. Even though the Act does not enlist incidents of Coparcenary, it can be concluded that a daughter now had every right as equal as her male siblings.
c) Section 6(3): Survivorship- the doctrine of survivorship was abolished and replaced by doctrine of succession. The concept of notional partition was retained, subject to modifications. Prior to this amendment, notional partition occurred only if the undivided male coparcener died leaving behind any of the eight class1 female heirs or the son of a predeceased daughter. Post amendment, this occurred in every case of intestacy.
46. Sugalabai v. Gundappa A. Maradi, 2008 (1) H.L.R., (Kar.) 359
47. Varalakshmi and Anr v. G. Srinivsa Raoand Anr. 2009(6)ALD117(SC)
48. Anar Devi and Ors. v. Parmeshwari Devi and Ors. (AIR2006SC3332)
49. Section 6(3) – where a Hindu dies after commencement of the Hindu Succession (Amendment) Act 2005, his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession as the case may be under this act and not by survivorship and the Coparcenary property shall be deemed to have been divided as if a partition had taken place.
50. Gurupad Khandappa v. Hirabai Khandappa129ITR440(SC)
d) Section 6 (4): Pious Obligation - The position under classical Hindu law was that the son was under religious mandate to pay the debts contracted by his father. This duty extended to grandsons and great grandsons, having its origin in the conception of Smriti writers who regard nonpayment of debt as a positive sin . It was postulated that even before paying back his own debt, an ideal son should first unburden his ancestor’s debts. The underlying raison d’être behind this was that only when the son had discharge off the debts of his ancestor would they attain spiritual salvation and be born in a respectable family in their next incarnation. This provision was discontinued, and now the son is under no obligation to pay his father’s debts.
e) Section 6(5):Prospective Amendment - This section states that the amending Act has a prospective application with effect from20th December, 2004. It also specifies that only written partition, duly registered under theRegistration Act, 1908, or the partitions, affected by a decree of Court, are recognized . Prior, even oral partitions were given cognizance by the Courts, which led to a lot of confusion.
3. Deletion of Section 23 - Itlaid down that “the right of any female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein” with an even more demeaning qualification being- “if such female heir was a daughter, she shall be entitled to a right of residence only if she was unmarried or has been deserted by or has separated from her husband or is a widow”.It intended to respect the ancient Hindu tenets which treasured the dwelling house of the family as an impartible asset. This section was justified by the excuse that letting a share of the dwelling house to female members would lead to fragmentation of property. HSAA 2005 did away with this prejudicial section , enabling female heirs of Class Ito claim partition
51. Sideshwar Mukherjee v. Bhubneshwar Prasad Narain Singh, A.I.R.1953, S.C. 487.
52. B.M. Gandhi, Hindu Law, Eastern Book Company, Lucknow, (2008), p. 129.
53. Vivek Kumar & others v. Smt. Binda Devi & others, A,I,R., 2006, Patna, 65.
54. Mookkammal v. Chitravadivammal, A.I.R1980, Mad. 241.
55. Supra n.44
in a dwelling house. This was important, since it was deleterious for married females who were thrown out of their house by their husbands on account of domestic disagreements, dowry demands or any such mishap. They were shelter less, bereft of any form of refuge.
4. Omission of Section 24 - this Section was unsympathetic to widows who remarried, including widow of a predeceased son; predeceased son of a predeceased son and a brother.Once she remarried, she ceased to be a member of deceased husband’s family, and not eligible to a share in his property. Since she was excluded from the family, so were her heirs. HSAA 2005successfully ensured that widows get their rightful share after they marry again. Widow Remarriage is to be encouraged in the society, but limiting proprietary rights of a widow, when she tries to reinstitute her life, should not be allowed to exist in law. A mother, not being specified in section 24, is an heir to her son even after remarriage as laid down in Kasturi Devi v. Deputy Director of Consolidation.
5. Right to make testamentary Disposition - now that the daughters are members of the Coparcenary by birth it axiomatically gaveher right to absolute testamentary dispositions under Section 30.
6. Introduction of new heirs - The Amendment introduced four new heirs in Class I category with respect to male intestate. Earlier these were present in Class II category. This elevation of predeceased daughter, daughter of a predeceased daughter of a predeceased daughter, daughter of a predeceased son of a predeceased son is still subject to critical scrutiny as these heirs are present in both the categories- I and II, which is redundant and should be rectified. However, such an uplift of heirs points to an intention to better the status of female heirs.
56. G. Sekar v. Geeta AIR 2009 SC 2649
57. A.I.R 1976, S.C. 2595
58. Section 30: “any Hindu may dispose of by will or by other testamentary disposition any property, which is capable of being so [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus”
HSAA 2005- A ‘COSMETIC LEGISLATION’?
Many inconsistencies and irregularities have been observed in the HSAA 2005, which have brought it under incessant criticism. These aberrations have been discussed below-
1. Ambiguity with respect to Section 4(2) - with the deletion of the section, certain confusion frustrated the purpose behind the amendment. Earlier, the state laws would be applicable in matters regarding agricultural holdings and tenancy rights. However, with the removal of this section, the present Act does not talk of the situation whether the Hindu Succession Act would be applicable to the states where no such regional or state legislation was in operation. Even if we construe a tacit position that the HSA would be applicable to all the states, then it would mean that only the Hindus would be governed by it but the non Hindus would be under the ambit of state laws, which would again create uncertainty.
2. Section 6(2) and 6(3)- Antagonism - after the amendment, the position is amply clear that under 6(2), daughters are entitled to equal rights and incidents of Coparcenary as a son has including unity of possession, community of ownership, survivorship, etc. Since the amended Section 6(3) has expunged the doctrine of survivorship, there needs to be an explicit clause introduced that guarantees that incidents of Coparcenary would not include devolution by survivorship.
3. Differences between female members - HSAA 2005 has ensured that a daughter becomes a coparcener by birth; however, the position of the mother remains the same. The females who are introduced in the family by marriage are still governed by the old law. Hence, family discomposure creeps in due to the unequal primacy assigned to different female members.
59. Alka Singh, Women in Muslim Personnel Law, Jaipur (1992), p. 116.
4. Abolition of Son’s Pious Obligation - With the omission of Section 6(4) of the Act, a son is no longer bound by the burden to discharge the debts incurred by his ancestors, even though his right to become a Coparcener at birth remains sustained. It is based on pious obligation of the sons to see their father's debt must be paid . Many Hindu scholars criticize this step as an impudent derision of the ancient Shastric tenets, stressing that the assigning a right in Coparcenary by birth should be entailed with some accountability the part of the son.
5. Non inclusion of analogous Heirs - Section 8 of the Act was rendered more gender friendly when four new heirs were added in the Class I category, namely-Son of a predeceased daughter of a predeceased daughter; daughter of a predeceased daughter of a predeceased daughter; daughter of a predeceased daughter of a predeceased son; daughter of a predeceased son of a predeceased daughter. By synonymous analogy, as recommended by the 204th Amendment Report in this regard, two additional heirs should also be assigned a place in the abovementioned category- predeceased son of a predeceased daughter and the son of a predeceased daughter of a predeceased son, otherwise it leads to reverse discrimination.
6. Position of Father - in the amended Act, a father is placed in Class II Category heirs. This is untenable as if a mother is a Class I Category heir, then on account of nearness of blood relation, her male counterpart should also share the Class I Category with her. This is also suggested by the 204th Law Commission Report. In light of the Senior Citizens (Maintenance, Protection and Welfare) Act of 2007, it becomes imperative to allot the father a due position.
7. Section 15- Unfair tilt towards Males - under Section 15 of the Act, a separate scheme of succession was devised for female to guarantee gender equality. But an inadequacy in this progressive provision is that when a female dies intestate and issueless, the property
60. Neil Baillie, Digest of Mohammedan Law, London (1879), p. 295.
inherited by her from her father or husband devolves upon each respectively, or to her father’s or husband’s heirs respectively. There is an express ostracism of her female relations like her mother, sisters, etc. It is noteworthy that in the case of male intestate succession, a mother is a Class I category Heir, whereas she is excluded under the female intestate succession scheme.
8. Position of Father’s Widow - Entry 6 in Class II heirs delineates that a widow along with brother’s widow are placed below a grandfather and grandmother of the deceased male coparceners dying intestate. The entry ‘Father’s Widow’ may also mean to be a mother. There arises a situation where a mother and a stepmother may be involved. However, who is assigned what strata- Class I or Class II is an ambivalent position.
9. Children of Daughter- Coparceners? - Yet another debate regarding the inheritance rights and Coparcenary position of the children of a daughter. Even though a daughter is a coparcener by birth, can the same status be extended upon her children? Section 6 attempts to clear these blurred lines by postulating that only the daughter of a coparcener is included in the Coparcenary. There is no intelligible basis of segregating her son from becoming a coparcener by birth. A daughter’s daughter otherwise gets double share, whereas her brother gets a single portion. Thus, it is suggested that the word ‘daughter’ in the Section be replaced by ‘children’, to render the law more egalitarian.
10. Double share of Wife - it is provided by the Amendment that a daughter not only gets her share of property from her natal family, but also from the family in which she is married. This dual share entitled to her has been aggressively condemned, especially by the male scholars. They hold the view that in order to erase one kind of discrimination, it is highly obtuse to trigger off another kind of retrograde discrimination.
A mountain of gender justice is being mined out of a molehill of a Bill to give women rights of inheritance equal to those of men. Even after the new piece of legislation comes into effect, the law will remain helpless if women are, discriminated against. The HSAA 2005is truly a brazen, avant-garde move with far reaching implications. Standing a phoenix from the ashes of a myriad of legislations, it withstood all trials a patriarchal nation like India could offer. From safeguarding the rights of a daughter at her birth, to ensuring that a widow is not denied her right in property after remarriage, it has obliterated the inherent gender bias incorporated in the Hindu scriptures. The most admirable aspect of the amendment is that it preserved the quintessence of the Mitakshara School of Law. Arming them with measures to repair a past of unquestioned discrimination, it has truly paved the path to a more propitious future for women.
However, ambiguities and confusions have fanned male chauvinist interpretations, which defeat the ameliorating aspects of the amendments. Critics cited its dire potential consequences: spikes in female infanticide, uncontrollable spirals of land fragmentation, and breakdown of the Hindu Family. Madhu Kishwar cautioned against giving daughters right by birth in ancestral property, saying the "little right" women had been often done away with by a will and the law should take care that her rights are not nullified in any way. It has been observed that the new provisions are proving to be somewhat counter-productive when it comes to practical application. If the same rights are given to the daughters as to a son, there will be uneasiness and tensions and every family will be ruined with litigation.
It is opined that the amendment will have a very disturbing effect on the agrarian set-up in this country. If you give the share to the married daughter, are you not making the son-in law a co-sharer in the family property? It will have a very disastrous effect. The conflict between the Act and social norms is so great as to convince families that female infanticide is their only option. They claim that granting daughters rights to their parent’s ancestral land is equivalent to an assault on the patriarchal Hindu family . It is but natural that the husbands of females would like
61. A giant leap in propaganda: a small step for gender justice, the Economic Times,TNN Aug 18, 2005
62. Rachel Brulé, Indian legislation has revolutionized property rights – equalizing women’s rights to inherit land and other ancestral property as of 2005. What is the impact of this legal revolution on women and Indian society as a whole?
63. Family Equations Set To Change With Succession Act, The Economic Times, TNN Dec 18, 2004
64. Sh. Thakur Das Bhargav, “Lok Sabha Debates”, p. 045.
65. Id, Sh. Sadhan Gupta, p. 8139.
66. Supra n.55
to have the loaf of the property of the family from which the female has come. This would cause great nuisance and unhappiness to the society.
Sociologists opine that HSAAis indirect dowry in disguise because when a Hindu female dies issueless; her property first devolves upon her husband and his heirs. A natural aftereffect of this is rocketing rates of dowry death. If the daughter is given share in the property, it will result in new elements coming into the family, the system would be disrupted, there will be disorder breeding ill will, hatred etc. If the girl takes away her share, brother-sister bond will be shattered, and in times of difficulty or trouble created by the in-laws, her family may not come to rescue her.
Critics argue that traditional families would rather prevent the birth of daughters than raise women who will eventually destroy their natal families’ honor and wealth. It is also apprehended that if married femalesafter getting their share, will sellit to purchase property at her husband's place, destroying the economy of the agricultural sector. Will it lead to more litigation? A married woman is often coerced to demand partition of her share by her in-laws so that it can later be used by them for personal gain. It is also criticized that the brothers may stay together, but when daughters and sons live together, how can the property be divided? Spousal violence and domestic brutality are some repercussions of the right to demand partition. How could a woman be the Karta of two families after her marriage? Thus, family relations strained, due to increased incidents of partition and competition seeping into household tranquility.
Apart from rectifying technical glitches and elucidating upon nebulous areas of the Act, there is a need to interpret the law more benignly, to realize the prime thrust behind the Amendment. If we question whether universalizing of the law of inheritance has been put to effect by HSAA, the answer will be definitely negative. The onus of effective implementation lays on the society too,
67. Sh. Bogawat, “Lok Sabha debates” , Part –II 1955 p. 8211-12
68. Id, Sh. Lakshmaiyya p. 8209.
69. S.S Johl, Daughters at a disadvantage; Hindu Succession Act change doesn’t help them, The70. Tribune, (March 20, 2006).
70. Supra n.56
71. Supra n.63, p.12.
73. Supra n.61 Sh. Dabhi, p. 8322.
74. Ayilyath, Manoranjan, Did Hindu Succession Act Indeed Outcast Mitakshara Coparcenary (July 12, 2014).
in ways like spreading awareness, legal education, setting up legal forums for discussion of the problems encountered in the application of the new laws, etc. It can always be hoped that HSAA brings to fruition what was aspired by it at the time of its inception, reinforcing women rights and reinstating their long lost esteemed stature and grandeur.
|ISHITA KHARE is a student pursing B.A. LLB (Hons.) from National Law Institute University, Bhopal. She may be reached at firstname.lastname@example.org. This article was ranked as the second best essay in the 1st R.N. Sahay Essay Writing Competition organised by R.R. Sahaya & Associates where India Law Journal was the Media Partner.