The development and progress that characterises post-Independence India has also given rise to a breakthrough in the Indian woman’s fight for justice and equality. Such hopes were formerly denied to them by religion, tradition and society as a whole.
Once Independence was achieved, there was a need construct a secular law-a common civil code, which did not discriminate between men and women. Thus, the Constitution of India guaranteed the following:
1) Equality before Law: i.e. Prohibition of discrimination on the ground of religion, race, caste, sex or place of birth (Art. 14)
2) Freedom of religion 25.1, subject to public order, morality and health. According to these provisions, all persons are equally entitled to freedom of conscience and enjoy the right to freely profess, practice and propagate religion.
It is interesting to note that it is because this article that women are deprived of certain rights, namely,
1) Equal rights to property;
(2) Equal rights within the family;
(3) some women have even been deprived to right to adopt a child.
The constitution does not see Patriarchy as a problem. In fact, it perceives it as natural while easily accepting the fact of a male-dominated society. Empowerment of women, leading to their equal social status, hinges among other things on their right to hold and inherit property. Several legal reforms have been made in order to allow an equal share of property to the daughters as well. Yet, equal status for women still remains elusive.
In India, the property rights of women are governed by the Hindu Succession Act 1956, Indian Succession Act 1925, and other personal laws relating to different communities. On January 18th 2005, a delegation of national organizations of women met the Union Law minister and made an appeal for comprehensive reforms to ensure equal property rights for women. Presently, the union government proposes to amend the Hindu Succession Act to give a married daughter the right to share in her father”s property if he died intestate. The amendment will also give a widowed daughter the right to ancestral property even if she is remarried. The bill has already been tabled on the current session of the Parliament. This is an important and progressive development when one considers the fact that the multiplicity of succession laws in India, so diverse in nature, made the property laws even mere complex.
It must be noted that the Act of 1956 gave the right of coparcener only to a male born in an HUF (Hindu Undivided Family). Let us also understand concept of coparcenary: A coparcenary is a legal institution consisting of 3 generation of male heirs in a family. The son born within 3 generations of an HUF had an equal right in the property. Women were absolutely excluded from the coparcenary.
An attempt to give women an equal right to property had been made earlier by four states, namely Andhra Pradesh in 1985, Tamil Nadu in 1990, Maharashtra and Karnataka in 1994.All these Acts had the same effect on the Common Civil Code, except for the arrangement of the sections. But were effective partially i.e in four states only. And hence failed to achieve the following.
1. Effect on Uniform Civil Code (Art.44 of the Constitution) as far as Hindus are concerned –
The four state laws governing Hindus in 1955-56 brought into existence common law for Hindus. But only four states were covered: Karnataka by this affected over enthusiastic attempt of these 4 states effect of the common civil code was lost, as the amendment effects the 4 states only. Apart from the utility or necessity of introducing a female to coparcenary, the other important issue that arises- Isn”t this piecemeal legislation destructive to the unity and integrity of Hindu law that governs all Hindus in the country on the subject of succession?
Kerala has totally abolished the coparcenary system, whereas the other states have modified it. The question becomes pertinent because the consequence of several states modifying or altering or abolishing the Hindu law in different ways would be destructive to the unity of Hindu law- the objective of the Hindu code. Again Hindus will be governed by different sets of laws within the same country, which is dangerous to national interests.
2. Migration of Hindus from one state to another-
The amendments made by these four states created a complicated question of migration of families and the law applicable to a family in case of migration from one state to another.
3. Other discriminations-
In its attempt to abolish the inequality between a son and a daughter and in an attempt to achieve the constitutional mandate of equality on the ground of sex, the amending acts have given birth to new discriminations as follows:
i) Discrimination between a married daughter and an unmarried daughter
ii) Discrimination between a daughter and a wife in the same family
iii) Discrimination between natural daughters and adopted daughters
iv) The amended Acts do not address the distinction in the Mitakshara and Dayabhaga schools of Hindu law and position of daughters under both these schools.
v) Discrimination between adoptive daughters and natural daughters.
Merits of the New Amendments
The Amendment Bill is based on recommendations by the 15th Law Commission under the leadership of Justice B.P. Jeevan Reddy. Certain positive aspects of the suggested amendments are outlined below:
•There should be no discrimination between daughters who are married before the new Act comes into force and those who are married after. At present this discrimination exists in Andhra Act.
•The share of a dead son or daughter shall automatically be allotted to the surviving child. The provision further clarifies that when a female Hindu, having interest in a property, dies after the commencement of the new Act, her interest in the property shall devolve upon the surviving members of the coparcenary and not in accordance with the new Act. Under the proposed amendment, if the eldest child happens to be a daughter, she will be entitled to act as a ”Karta” (eldest and responsible member in a family) of her parental family. She will be responsible for discharging obligations like paying off debts, marrying off unmarried younger brothers and sisters. These responsibilities were earlier the prerogative of the eldest male members of the family. It is opined by the former Chief Justice of Delhi High Court J. Leila Seth, ” Maintaining the change would discourage the practice of dowry since the girl will be the equal inheritor of ancestral property, the in-laws may not insist on dowry.” However, one must consider that there is a great probability that in-laws may want to marry daughters-in-laws for their share in the property. They may well insist on a partition and harass the daughters-in-law as well as their parents.
Demerits of the proposed amendments
The proposed amendments attempt to make daughters coparceners at birth in ancestral property. Thus, the amendment will benefit only those women who are born in families that have ancestral property. There is no precise definition of ancestral property. This confusion is magnified by the fact that families have been fragmented and the joint family system is on a decline. The law cannot apply to self-acquired property. In today”s context, most property is self-acquired and that property must follow principles of succession under the different succession laws. Moreover, the owner can dispose off such property during his lifetime by gift. Notwithstanding the amendment, a Hindu father can disinherit his wife or daughter by will, in his self-acquired property. In some states, the shares of the daughters will increase as compared to that of widows. This would eventually lead to feuds between the female members of the family.
The proposed amendments to the Hindu Succession Act once again raise the question; Do only Hindu women need reforms? When we speak of equality on the grounds of religion, it becomes clear that equal rights should be given to women of all religions.
The question of succession arises only after the death of a person. Almost all laws permit a person to make a will in favor of any person he desires. However, the Muslim personal law places a restriction on the extent of property that can be given away by will. It says that only 1/3rd of a man”s property can be distributed by will; 2/3rd will devolve on Koranic heirs, which include children and parents in varying shares. Female heirs inherit half that of male heirs.
In Christian law, intestate succession (when there is no will) to all property is determined by the Indian Succession Act. Thus, a man’s widow and children (male/female) inherit equally. However, a man may, by will, bequeath his property to anyone, totally disinheriting his heirs. Here, we would do well to consider Mary Roy”s case, where Mary Roy challenged the Travancore Christian Succession Act 1916. This states that in case of intestate property, the daughter was entitled to 1/4th of son”s share of estate or Rs.5000 whichever was less. This law applied to intestate succession of Christians, but excluded Protestants and Catholics living in some districts of South India, where the daughters got an equal share as that of sons. The Supreme Court of India did away with this anomaly of law and the judgment was given in Ms. Roy”s favour.
In conclusion, it must be noted that reforms should be made for all women, irrespective for their caste, creed and religion. An attempt should be made to achieve the objective laid in Art.44 and the rights, guaranteed in Arts 14 and 15. It is only then can we claim that we have fulfilled the pledge of liberty and equality that we had made fifty five years ago.