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Published : June 28, 2011 | Author : saeed
Category : family law | Total Views : 6379 | Unrated

Mohammad Saeed Husain. Second year Student of LL.M from NALSAR University of Law

Natural Basis of Family Rights

Family law in India is no way a monolithic legal system. The term denotes mainly the law governing the two major communities and all moves round the religious personal laws. These religious norms are, on the very face value, violating the precious guarantees of equality and justice as enshrined in the constitution of India. The directive of uniform civil code, as enshrined in the Constitution of India, has till date not taken the shape of law. Thus it can rightly be said that the atrocities and injustice which one gender was facing since time immemorial in the society had not been ended in the post-independence era.

This article would be dealing with two main social institutions i.e. the family and the marriage. It would try to put before his readers that how both these social institutions had led to the social injustice or rather gender discrimination having the veil of religious personal laws and with the tag of family law. This article would be projecting on the diversity in the family system in India thus dealing with the origins of this social institution and the rights and recognition of women class under the family.

The two aspects which this article is seeking forward is the right of women under ancestral and matrimonial property and endeavours to seek some reformation under the same heads.

The family is by far the most important primary group in society. Historically it has been transformed from a more or less self-contained unity into a definite and limited organization of minimum size, consisting primarily of the original contracting parties. On the other hand, it continues to serve as a total community for the lives born within it, gradually relinquishing this character as they grow towards adulthood. The family, more profoundly than any other organization, exist only as a process. We can understand it only through a study of its change, the changes it has undergone in human history and the changes within it in the life history of each individual example.

The term nuclear family is used to mean the group consisting of husband, wife and their children. The normative expectation is that an individual will experience the nuclear family from two perspective, first as a child in his family of origin ( family of orientation) then as an adult in his family of marriage (family of procreation). Now there are various theories for the origin of families but the most influential is the Patriarchal theory or the male dominance role in the formation of family. It is been argued by many activist that the reason for the women oppression is mainly the patriarchal society. Women activist such as Heidi Hartmann lay down that ‘family is a source of women oppression today’ Summers says “the institution (of the family) confers power on men”

The patriarchal society which lay that the man had dominance over the women class and is the sole decision maker of the family, degraded the women by nearly all possible means, for example the women were not allowed to inherent from the property, they don’t have any say in the family matters, low value was placed on the life and labour of women etc.

With the emergence of the democratic ideas and the decline of the authoritarian powers of the religion, relax the knot of masculine power and the women class was under a pro-liberal age. The right to vote, which at first belonged to a man by virtue of his being a propertied householder, became by degree the individual right. The religious functions of the family diminished. The idea that the family was of divine ordinance, and its laws divinely appointed became less prevalent. Words which had given a religious connotation to familial loyality or obedience – like the word ‘pious’ – changed their meaning.

The industrial and technological era had also led to the development of women status in the society. The economic era need more labours in the factories and industries which gave the household women a chance to come outside and become economic independent. The economic independence of women further nails down the coffin of patriarchal evils.

But whether the change from the patriarchal to the modern family had really gained women the status which she deserves? The answer echo’s in negative

A joint Hindu family consist of the common ancestor and all his lineal male descendants upto any generations together with the wife or wives (or widows) and unmarried daughters of the common ancestor and of the lineal male descendants.

The status of women in the family is always regarded as the secondary and no important role had been attached to her personality. The work in which the women were engaged was related to procreation of children and daily household work which vary from society to society for example some of the work which she had to do are cooking, taking care of children, physical activities such as walking long distances to fetch waters, or to collect firewood.The reason why the women play the secondary role in the family matters, according to the author, is that the Hindu religious code does not provide for any share of women under the property.

Now the theme of discussion would be around two kinds of property
· Ancestral property
· Matrimonial property

Prior to the enactment of the Hindu Succession Act, the law does not provide for any share in the ancestral property to Hindu women. The limitations were such that she was not allowed to work outside and thus she was wholly economically dependent on the male members of the family. This dependence of the women class is the chief reason for its limited role in the family matters.

The major development was made in the year of 2005 and it conferred equal property share from the ancestral property on the daughter. By birth a daughter would acquire property rights and would be like any other coparcenary.

This amendment opens a new dimension into the women rights in the family matters. It is well known that the Hindu joint family is headed by a Karta or the manager of the family. This amendment had given rise to a new question i.e. whether a woman can be a Karta of the family?

The Limited Debate
Prior to the amendment there was no debate relating to the holding of the post of Karta which by both de facto and de jure resides with the senior male authority of the family because male only had the right of coparcenary. But after the amendment the female also had the coparcenary right and thus entitled to the post of Karta. But the reason I have titled this debate as ‘limited debate’ because it is confined to the point where there is no major male member left in the family, on that occasion debate argues for female to be Karta of the family. The point that I argues is that is that for suppose the senior most member in the family is the female and there are males also left in the family, then whom should the position of Karta should rest with? As per the true notion of equality and gender unbiased it should be with the senior member, whether male or female, of the family.

But the heights of injustice can be seen in the limited version i.e. where there is no major male member left in the family; the women are not allowed to hold the post of Karta! – Reason which the author can foresee is ‘the deep rooted norms of patriarchal society’.

It must be made clear at the outset that the issue of matrimonial property and its equitable division is a matter that concerns those families that have property; and that number is not small in number. As a prevalent custom male in the families are always regarded as the earning member and women are obliged with the task of household, thus it becomes practically nil for the women to have its own earning.

Apart from the ancestral property, husband had an exclusive right over all the property. In a society where husband can alienate all of his exclusive property through testament, the wife had a limited scope to claim in this property of her husband at the time of divorce. One of the major question arose here why the women is not allowed to have share in the matrimonial property? And whether the share given under the matrimonial property would help in the upliftment of the women class?

Several writers have pointed to the positive link between women’s access to property and enhanced bargaining positions both within the community and the family. Thus for instance, Bina Agarwal notes that this bargaining involves both cooperation and conflict and that person who has a stronger fall-back position and whose claims enjoy greater legitimacy, would emerge with a more favourable outcome, although both parties would be better-off than if they did not co-operate.

The argument made is that as the husband is breadwinner of the family, and that the wife is not the economic helper to the family, thus the sole right over the matrimonial property is that of the husband. The most sincere argument which can counter the claims of the husband in the matrimonial property can be the ‘role of homemaker’ which is been played by the wife in her household can be said to be her contribution towards the family, but the same is not been recognised by law!

Sivaramayya in his book matrimonial law in India had accepted that the Indian law do not recognise the claim of wife over the matrimonial property. He further lay down that the section 27 of the Hindu Marriage Act, 1955 does not incorporate the equitable principle of distribution of matrimonial property. Thus it can be said that the women are not allowed to have share in the matrimonial property as the work she does as the ‘homemaker’ does not count in economic value. The economist Alfred Marshall made the point that if he hired a woman as a domestic help the national economy would increase, but if he married her it would go down!

The same can be gathered from the judgment of the Hon’ble Supreme Court where the Hon’ble Court sacks the Government for equating the housewife with prostitute and beggars. The court held that “the gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life".

It can rightly be observed that if the unpaid labour of the women is granted in economic terms, it would help them to have some share in the matrimonial property which indeed would lead their upliftment and better say in the family matters.

There is lacuna in the law in as much as it does not recognise a notion of matrimonial property in India. Section 27 of the Hindu Marriage Act does not suffice. Given the limited rights to inherit property that women have in many religious personal law and their lower levels of participation in the labour force, it comes as no surprise that the property ownership of women is limited.
# Article 14 of the Indian Constitution
# Article 44 of the Indian Constitution
# Divine theory, Theory of Sex Communism, Matriarchal Theory, Patriarchal theory, Theory of Polygamy etc
# Heidi Hartmann, “The Unhappy Marriage of Marxism and Feminism: Towards a More Progressive Union” in
# Women and Revolution, Ed. by Lydia Sargent, Montreal 1981
# Summers op. cit., p. 259
# Kodoth,praveena. 2004 ‘Gender, Property Rights and Responsibilities for farming in Kerala’
# Subject to the amendment in the Hindu Succession Act in 2005
# Property inherited from father, father’s father and father’s father’s father – this is the same thing as sapratibandha daya and it is this property which is called as ancestral property.
# Matrimonial property is all assets "acquired by either or bother spouses before or during their marriage," according to the Matrimonial Property Act. This includes the home and "all other real and personal property."
# Law Commission of India report on ‘Property Rights of Women: Proposed Reforms under the Hindu Law’, May 2000
# Agarwal (1994:362) notes that in 1982 , the percentage of landless(i.e., owning nither agricultural nor homestead land) to total rural households in India was 11.3 % however 62.4 % of these land owning households had merely between .002 – 1.00 hectares ( ibid:364)
# The wife’s right to inherit the husband property is, of course, not under dispute. However, the fact that the husband is free to treat his property as entirely his own s borne out by the unlimited right to will away his property defeating claims of his wife in many religious personal law system. And this right to inherit is not relevant when the marriage ends in dissolution.
# Jain and Banerjee 1985, Sen 1990
# Bina Agarwal, Bargaining Gender Equality and legal change, 1994 page 54-55
# Balkrishna Ramchanrda Kadam V. Sangeeta Balkrishna Khadam AIR 1997 SC 3562
# Taken from the website www.zeenews.com, can also be find in the leading newspapers dated 23 or 24 July 2010.

Authors contact info - articles The  author can be reached at: saeed@legalserviceindia.com

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