The United Nation’s Report of 1980
“Women constitute half the world’s population, perform nearly two-thirds of its hours, receive one-tenth of the world’s income and less than one hundredth of the property.”[1]
Status of Women in India
India is a multi-linguistic, multi-cultural and multi-religious state of more than a billion people, of which almost half comprise females. The principles of fairness and equity are enshrined in the Constitution of India, that unequivocally mandates gender equality. Discrimination and violence against women do not just victimize the individual women, but do indeed hold back whole sections of society. Guaranteeing rights to women is an investment in making the whole nation stronger and self-reliant.[2]
Personal Law and Its Impact on Women
In India, it is particularly the personal law that principally governs the lives of women, though to many, the exact dimension and how it controls the lives of each one of us may not be very clear. Simply stated, personal law is the set of rules which govern the behavior of individuals vis-à-vis their family i.e., spouse, parents, children etc. As often seen, law by itself is no deterrent against crime. In fact, it is the attitude of society in general and the individual in particular that determines the effectiveness of any legal system. Thus, laws are nothing but codified social behaviour, so in order to make the law effective there is equally a back-up requirement for social education and social transformation.
Usurpation of Women’s Legal Rights
It has been widely observed that the rights that women have under personal law are often usurped. Though the law provides for a judicial procedure to enforce the law by way of courts as well as the penalty for violating the law, women being socially and economically subservient are either unaware or unable to enforce these legal rights through courts.
Most common people are apprehensive and reluctant to approach the court because:
- The language of the law is difficult and inaccessible.
- The procedure is often extremely complicated.
- Depending on residence or religion, jurisdiction and available remedies may differ.[3]
The Approach of the Southern Amendments
It will be noticed that reform in the area of property rights for women and daughters in particular follows two broad approaches:
| Approach | Description | Key Criticism |
|---|---|---|
| Reformation of Personal Law | Reforms discriminatory laws that devolve property upon males by virtue of birth and gives women similar rights. | Retains customary-personal laws but tampers with their fundamental principles. |
| Direct Abolition of Customary Laws | Removes all discriminatory customary-personal laws on the ground that they cannot be fruitfully reformed. | Leads to mixed results depending on regional traditions. |
Both approaches have been attempted in India with varied results and consequences for the rights of women.
Kerala Joint Family System (Abolition) Act, 1976
The second, more direct approach was attempted in Kerala in 1976 with the Kerala Joint Family System (Abolition) Act, 1976, which followed the broad recommendations of the Hindu Law Committee (Rau Committee) and abolished the right of birth under both Mitakshara and Marumakattayam Law. The Act itself creates consequences that have proved to have both positive and negative implications for the rights of women.[4]
Key Effects of the Kerala Act
- Regional Limitation: The Act operates only in Kerala where matrilineal succession systems such as Marumakattayam Law were also abolished. While the ‘right by birth’ principle is generally discriminatory against women, in Kerala it sometimes benefited them, and thus its abolition adversely affected women.
- Prospective Operation: The Act is prospective in nature, abolishing devolution of property by birth only after its enactment, and thus not benefiting women who were previously denied property rights.
- Change in Property Holding: Members of the Mitakshara coparcenary hold ancestral property as tenants-in-common as if partition had taken place. This allows male coparceners to dispose of property by will or alienation, defeating women’s property rights.
- No Rights to Existing Daughters: The Act does not confer any rights to daughters in existing coparcenary properties.[5]
The Andhra Model (1985)
The second approach of reform was attempted by the Andhra Pradesh legislature in 1985 where it reformed the customary Hindu law by making the daughter a coparcener and granting her the same rights as male coparceners. This Andhra Model was subsequently replicated in Tamil Nadu, Karnataka, and Maharashtra. The details and implications of this model will be examined further below.
The Pith and Substance of the Andhra Model
Under S.29-A[6] of the Andhra Act[7] the daughter becomes a ‘coparcener by birth’ and has all the rights and liabilities as male coparceners, i.e., the devolution of coparcenary property to the daughter would be in the same manner as to the sons. S.29-B provides that coparcenary property would devolve by survivorship on the daughters.[8] The effect of S.29-C is an example of the ‘special rights’ that would now accrue on the daughter, as she would now be entitled to the right of preemption in case of certain coparcenary property.
Conditions for New Rights and Liabilities
Under the Act the ‘new rights and liabilities’ arise only if:
- (a) A prior partition had not taken place
- (b) The daughter had not previously married[9]
- (c) The daughter is a major[10]
Prima facie, it appears all seems well in terms of the technical and substantive aspects of the Andhra model. Whether this early assumption is correct remains to be examined. The technical aspect will now be examined in this sub-section.
Nature of the Amendment
The State Acts that create the Andhra model are titled as ‘Amendment’ to the ‘Hindu Succession Act, 1956’, i.e., they wish to modify the law dealt with in the latter Act. Under S.4 (1)(a)-(b) of the HSA, it is clear that the Act does not codify the entire Hindu Law related to devolution of property but is a code only for those areas where specific provisions have been made.
The HSA does not deal with the intricacies of devolution of coparcenary property at all (even S.6 HSA creates only an exception for devolution by survivorship in respect of interest in coparcenary of the intestate). Therefore, devolution (by birth) of coparcenary property is covered by (uncodified) customary Hindu Law.
Thus, the Amendments give ‘survivorship rights’ to the daughter (with ‘succession rights’ already given by S.6 of the HSA), i.e., the Amendment purports to amend a part of the law that is not even dealt with in the Act itself.[11]
Conceptual Confusion in Terminology
This fundamental error is carried further (either to tide over colorable nature of the amendment or because of pure error) in titling the material section of the Andhra, Tamil Nadu & Maharashtra as “Succession by Survivorship”, which it is submitted is an oxymoron!
In the scheme of the HSA, ‘devolution of interest of the intestate in coparcenary’ is titled ‘succession’ (obstructed heritage) while ‘devolution of coparcenary property’ (as explained earlier, is in the domain of customary Hindu Law) is termed ‘survivorship’ (unobstructed heritage).
This error, while appearing hyper-technical, illustrates a conceptual confusion which may not be overcome by simply changing the marginal heading of the section because of the fundamental conceptual flaws pointed out in the previous paragraphs.[12]
Effect on the Traditional Joint Family and Its Fundamentals
As explained earlier, the Acts make the daughter a full coparcener, and this makes her a member of her natal family. Marriage to another family does not alter this position. In other words, she is a member of two families—her natal family and her husband’s family—a position of law hitherto unknown.
The Supreme Court in the past has struck down definitions of ‘family’ that are artificial because they don’t exist in actual practice or because they violate fundamental rules of legal construction. In Kunhikoman v. State of Kerala, a definition of family that included ‘husband, wife, unmarried children or such of them as they exist’ was struck down as unconstitutional and artificial as it did not exist in actual practice nor in any established system of law.
It remains to be seen if such a modification to the meaning of the ‘family’ that the amendments have in fact effected will be sustained, if challenged.
Position of Women as Karta
The woman as a karta within traditional Hindu law has not been accepted in practice nor in theories of Hindu Law. Such an exclusion is based on the logic that ‘only a coparcener can be a karta’. Since women cannot be a coparcener, they also cannot be a karta, and such logic is supported by the opinion of the Supreme Court.
The amendments, however, attempt to create exactly the contrary position—making a daughter a coparcener and thereby technically allowing her to become a karta of the joint family.[13]
As Prof. Sivaramayya has argued, this fiction of law could lead to practical difficulties if a coparcener leaves a daughter from a first marriage and a wife and children from a second marriage. Potentially, the first daughter could claim kartaship over the second wife’s family (as well as manage the affairs of their family) despite being a member of another family (after marriage)—practically a very difficult situation.[14]
Doctrine of Pious Obligation
The doctrine of pious obligation has posed difficulties in the context of codified law and more so in the context of women. It has been held that the ‘moral obligation’ to pay off the debts of deceased relatives that arises in the case of male coparceners does not apply to the widow.[15]
In Keshav Nandan Sahay v. Bank of Bihar, the court held that the sons were liable for pre-partition debts incurred by their deceased father with respect to some bank loans, while the widow was not. The court felt that on partition between the coparcener and his sons, the widow is allotted a share in her own right and not as a mere representative of her husband. This position differentiates her from her sons as regards their pious obligations.
The High Court of Karnataka (where the new amendments operate) took the same view, albeit before the enactment of the amendments. In Padminibai v. Arvind Purandhar Murabatte, the court felt that because a wife, not being a person entitled to a share in the Mitakshara coparcenary by birth, is not bound by the doctrine of pious obligation.
Impact of Amendments on Pious Obligation
Now, applying this reasoning of the Karnataka High Court to a post-amendment scenario—will the daughter be liable for pious obligation?
Following from the reasoning of the Karnataka High Court, the wife was excluded from pious obligation simply because she did not have a right by birth in the coparcenary. Therefore, if a daughter acquires a share in the Mitakshara coparcenary by birth, it must follow that she will now be liable. This will have to be adjudicated upon by the courts to achieve certainty in the matter.[16]
Issues of Reunion Under Mitakshara Law
Other aspects of Mitakshara Law, such as reunion, also pose problems because:
- They are regulated by uncodified Hindu Law, and
- A reunion is only possible between father-sons, brothers, nephews, and paternal uncles—totally excluding women.
Again, as argued above, if the daughter (or sister or niece) becomes eligible to participate in reunion as a coparcener, then it will amount to tampering with uncodified law—something which the amendment to a partial code cannot effect.
Questionable Distinctions in the Amendments
In Section 29-A of the Andhra Act, the daughter becomes a coparcener “by birth.” Therefore, does this section apply only to natural-born daughters, or also to daughters by adoption? Should “birth” be strictly interpreted so as to exclude the latter?
The second questionable distinction is found in Section 29-A (iv), where the coparcenary rights are said to accrue only to daughters who remained unmarried at the time of enactment of the amendment. Should marital status be taken as a legitimate basis of classification that could exclude some daughters from the rights that the amendments create for other ‘classes’ of daughters?
Doctrine of Reasonable Classification
In Indian constitutional law, exceptions to the “Equality and Equal Protection Clause (Article 14)” are analyzed through the Doctrine of Reasonable Classification. This doctrine allows certain exceptions to a strict rule of equality if two conditions are satisfied:
- (a) The classes created are based on some intelligible differentia.
- (b) The classification bears a rational nexus to the object of the classification.
Distinction Relating to “Birth”
It seems that there is an intelligible differentia between a ‘natural born’ and an ‘adopted’ daughter, with the section’s wording implying that “birth” might have to be strictly construed. However, it is on the second condition of rational nexus that this distinction becomes untenable.
From the reading of the preamble to the Andhra Act, it is clear that it was enacted because “…exclusion of the daughter from participation in coparcenary ownership by reason of her sex…” is contrary to Article 14 (Equality Clause) of the Constitution. The emphasis seems directed at removing discrimination ‘by reason of sex’. Therefore, differentiation by “birth” does not have a rational nexus with the object of the Act, which is removing discrimination based on sex. It is humbly submitted that the answer is no.
Support from Hindu Adoption and Maintenance Act, 1956
Further support for this argument can be drawn from Section 12 of the Hindu Adoption and Maintenance Act, 1956, which severs for the adoptive child (from the date of adoption) all legal links with his or her natal family and associates them with only the adopted family.
However, Prof. Sivaramayya disagrees, arguing that the section does not intend to give coparcenary rights to an adoptive daughter because of the emphasis on “by birth.” Without going into the substance of his argument, it may be questioned on the count that one must not assume that the opinion of the legislature must in all cases be given effect if it results in absurdity or injustice.
Judicial review of legislative acts has often proceeded on the ground of ensuring higher constitutional values, whether intended by the legislature (but not reflected in the wording of the enactment) or contrary to the opinion of the legislature itself.
Distinction Based on Marital Status
The second questionable distinction arises from using marital status to exclude daughters married before the commencement of the Act from its operation. It has been argued that the reason for this distinction might be the sociological belief that dowry given to the daughter at marriage constitutes her share. However, this justification, it is submitted, is against public policy, especially when there are multiple legal prohibitions against dowry.
While this distinction in the context of the amendment has not been adjudicated, in other situations, marital status as a ground for differentiation has been held unconstitutional. The trend of the Supreme Court appears to go against accepting differentiation based on marital status. Thus, it reinforces the submission that ‘marital status’ cannot have a rational nexus to the object of granting coparcenary rights to daughters in general.
A Female Hindu’s Right to Property
A female Hindu’s right to property is governed by the Hindu Succession Act, 1956.
Position Before the Hindu Succession Act, 1956
Prior to the enactment of the Hindu Succession Act, 1956, a female Hindu only had a right to maintenance from ancestral property, and a widow had a limited estate which she was disentitled to part with. The amendment to the Act made the law far more egalitarian.
Current Rights Under the Act
Now, as an heir, a daughter is identically placed to a son in terms of inheritance of ancestral property. The only disability placed on a female heir under Section 23 of the Hindu Succession Act is:
- A female heir cannot seek partition of the dwelling house until the male members choose to do so.
- However, if the female heir is single or widowed, she has a right of residence and maintenance.
Difference in Succession Between Men and Women
| Devolution of Property | Male Hindu | Female Hindu |
|---|---|---|
| First Devolution | Children, wife, and mother | Children |
| Second Devolution | Extended family | Husband |
| Third Devolution | — | Husband’s relatives |
| Special Case | — | Her family inherits property devolving upon her from her natal family |
Hindu Succession (Amendment) Bill, 2004
The Hindu Succession (Amendment) Bill, 2004 proposes to remove discrimination contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in Hindu Mitakshara coparcenary property as sons have. It is based on the recommendations of the Law Commission of India in its 174th Report on “Property Rights of Women: Proposed Reform under the Hindu Law.”
Proposal to Omit Section 23
The amendment proposes to omit Section 23 to remove the disability on female heirs contained in that section. Section 23 of the Act currently disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares.
The Response of the Judiciary
It is clear from the foregoing that though the property rights of Indian women have grown better with advance of time, they are far from totally equal and fair. There is much that remains in Indian women’s property rights that can be struck down as unconstitutional.
Judicial Approach to Personal Laws
The response of the judiciary has been ambivalent. On one hand, the Supreme Court of India has in a number of cases held that personal laws of parties are not susceptible to fundamental rights under the Constitution and therefore they cannot be challenged on the ground that they are in violation of fundamental rights, especially those guaranteed under Articles 14, 15 and 21[27] of the Constitution of India[28].
On the other hand, in a number of other cases, the Supreme Court has tested personal laws on the touchstone of fundamental rights and read down the laws or interpreted them so as to make them consistent with fundamental rights. Though in these decisions the personal laws under challenge may not have been struck down, the fact that the decisions were on merits goes to show that though enactment of a uniform civil code may require legislative intervention, the discriminatory aspects of personal laws can definitely be challenged as being violative of the fundamental rights of women under Articles 14 and 15 and can be struck down.[29]
High Court Decisions
In some earlier decisions of the Patna High Court[30] (subsequently reversed by a full bench of the same High Court[31]) and a decision of the Allahabad High Court[32], the rule was made that any property acquired by a female Hindu anytime before the commencement of this Act is to be her absolute property. In fact, in one case the Supreme Court has held that personal laws, to the extent that they are in violation of fundamental rights, are void.[33]
In some judgments, the Supreme Court has expressly recommended to the State to carry out its obligation under Article 44 of the Constitution and formulate a uniform civil code.[34]
Reliance on International Standards
Another heartening trend is that the Indian courts are increasingly relying on international standards derived from various international declarations and conventions.[35] Specifically, CEDAW has been referred to and relied upon by the Supreme Court of India in some judgments.[36] These line of judgments give a firm basis for the women of India to demand gender justice and equal rights on par with international standards.
Current Developments and Challenges
Apart from the ongoing struggle for a uniform civil code in accordance with the constitutional framework, today the Indian women are fighting for rights in marital property, denied uniformly to them across all religious boundaries.
There is also a significant movement in some of the hill states towards community ownership of land by women by creating group titles and promoting group production and management of land and natural resources by landless women for joint cultivation or related farm activity. Land rights would be linked directly to residence and working on land under this approach being lobbied for under the Beijing Platform for Action.
Challenges Ahead
- Social acceptance of women’s property rights remains limited.
- Deep-rooted patriarchal mindsets often view women as property themselves.
- The implementation of constitutional and legislative safeguards remains uneven.
In a country where women continue to be considered as property themselves, the road ahead promises to be long and bumpy.
Conclusion
Empowerment of women, leading to an equal social status in society, hinges among other things on their right to hold and inherit property. Several legal reforms have taken place since independence in India, including on equal share of daughters to property. Yet equal status remains elusive. Establishment of laws and bringing practices in conformity thereto is necessarily a long drawn-out process. The government, the legislature, the judiciary, the media, and civil society have to perform their roles, each in their own areas of competence and in a concerted manner, for the process to be speedy and effective.
Impact of Legal Amendments
These amendments can empower women both economically and socially, and have far-reaching benefits for the family and society.
| Benefit Area | Positive Impact |
|---|---|
| Economic Empowerment | Independent access to agricultural land can reduce poverty and improve livelihood options. |
| Family Well-being | Enhances prospects of child survival, education, and health. |
| Social Protection | Women owning land or a house face less risk of spousal violence and gain security during marital breakdowns. |
| Productivity | Land in women’s names can increase productivity by improving access to credit and inputs. |
Birthrights and Coparcenary Property
Making all daughters coparceners likewise has far-reaching implications. It gives women birthrights in joint family property that cannot be willed away. Rights in coparcenary property and the dwelling house also provide social protection to women facing spousal violence or marital breakdown by giving them a potential shelter.
Millions of women — as widows and daughters — and their families thus stand to gain by these amendments.
References
- UNDP ‘Convention on Equal Right to Women’, 1998.
- Werner Menski, Hindu Law: Beyond Tradition and Modernity (Delhi: Oxford University Press, 2003).
- Ibid.
- Ranganath Misra, Mayne’s Treatise on Hindu Law and Usage, 15th ed. (New Delhi: Bharat Law House, 2003).
- Supra at note 4.
- Provisions under the Hindu Succession (A.P. Amendment) Act, 1989:
- 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, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities as the son.
- At a partition in such a joint Hindu family, the coparcenary property shall be divided so as to allot to a daughter the same share as is allotable to a son.
Provided that the share which a pre-deceased son or a deceased daughter would have got at the partition if he or she had been alive shall be allotted to the surviving child of such pre-deceased son or daughter.
Provided further that the share allotable to the pre-deceased child shall be allotted to the child of such pre-deceased child or daughter, as the case may be. - Any property to which a female Hindu becomes entitled by virtue of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded as property capable of being disposed of by will or other testamentary disposition.
- Nothing in this Chapter shall apply to a daughter married before the commencement of the Hindu Succession (A.P. Amendment) Act, 1989.
- Nothing in clause (ii) shall apply to a partition effected before the commencement of the Hindu Succession (A.P. Amendment) Act, 1989.
- AP Act 13 of 1986 w.e.f. 5.9.1985.
- S. Narayan Reddy v Sai Reddy AIR 1990 AP 263.
- B Chandrashekhar Reddy v State of Andhra Pradesh AIR 2003 SC 2322.
- G Valli v State of Andhra Pradesh AIR 2004 AP 174.
- N.R. Raghavachariar, Hindu Law – Principles and Precedents, 12th Edition (Madras).
- Paras Diwan and Peeyushi Diwan, Modern Hindu Law, 10th ed. (Allahabad: Allahabad Law Agency, 1995).
- Commr of Income Tax v Govindram Sugar Mills AIR 1966 SC 24; also see Kanji v Parmanand AIR 1992 MP 208 and Mangal v Jayabai AIR 1994 Kant. 276.
- B. Sivaramayya, “Coparcenary Rights to Daughters: Constitutional and Interpretational Issues,” (1997) 3 SCC (J), p.25.
- Supra at note 11.
- Satyajeet A. Desai, Mulla’s Principles of Hindu Law, 17th ed., 2 Vols. (New Delhi: Butterworths, 1998).
- Ibid.
- Dwarka Mittal, The Position of Women in Hindu Law, Vol. 2, p. 386.
- Durga Das Basu, Commentary on the Constitution of India (Vols. 1 & 2 of a set of 8 Vols.), 8th ed., 2007, revised by Justice Y.V. Chandrachud, Justice S.S. Subramani & Justice B.P. Banerjee.
- Supra at note 8.
- Supra at note 14.
- Mulla on Principles of Hindu Law, 20th edn., Vol. 1, by S.A. Desai.
- Ibid.
- Vidya Nand Ram (2001) 10 SCC 747; Dhanishta Kalita v Ramakanta AIR 2003 Gau 932.
- Rambai Patil v Rukminibai Vekhande AIR 2003 SC 3109.
- Mulla on Principles of Hindu Law, 20th edn., Vol. II, by S.A. Desai.
- Pratap Singh v Union of India AIR 1985 SC 1694.
- Key Supreme Court Judgments:
- Krishna Singh v Mathura Ahir AIR 1980 SC 707.
- Maharshi Avdhesh v Union of India (1994 Supp (1) SCC 713).
- Ahmedabad Women Action Group & Ors. v Union of India (1997 3 SCC 573).
- Pannalal Pitti v State of A.P. (1996 2 SCC 498).
- Constitutional and Personal Law Cases:
- Anil Kumar Mhasi v Union of India (1994 5 SCC 704).
- Madhu Kishwar v State of Bihar (1996 5 SCC 125).
- Githa Hariharan v Reserve Bank of India (1999 2 SCC 228).
- Daniel Latifi v Union of India (2001 7 SCC 740).
- N. Adithyan v Travancore Devaswom Board & Ors. (2002 8 SCC 106).
- John Vallamattom v Union of India (2003 6 SCC 611).
- RA Missir v Raghunath AIR 1957 Pat 480; Janki Kuer v Chharthu Prasad AIR 1957 Pat 674.
- Harak Singh v Kailash Singh AIR 1958 Punj 581 (FB).
- Hanuman Prasad v Indrawati AIR 1958 All. 304.
- Masilamani Mudaliar v Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525).
- Landmark Judgments on Gender Justice:
- National Textile Mazdur Union v P.R. Ramkrishnan (1983 1 SCC 224).
- Mohd. Ahmed Khan v Shah Bano Begum (1985 2 SCC 556).
- Jordam Diengdeh v S.S. Chopra (1985 3 SCC 62).
- Sarla Mudgal v Union of India (1995 3 SCC 635).
- Lily Thomas v Union of India (2000 6 SCC 224).
- John Vellamatham v Union of India (2003 6 SCC 611).
- Notable Precedents:
- Jolly George Verghese & Anr. v State Bank of India AIR 1980 SC 470.
- Gramophone Company of India Ltd. v Birendra Bahadur Pandey & Ors. AIR 1984 SC 667.
- People’s Union for Civil Liberties v Union of India & Anr. (1997) 3 SCC 433.
- Further Constitutional Developments:
- Vishaka & Ors. v State of Rajasthan & Ors. AIR 1997 SC 3011.
- Gita Hariharan v Reserve Bank of India AIR 1999 SC 1149.
- C. Masilamani Mudaliar & Ors. v Idol of Sri Swaminathaswami 1996 8 SCC 52.
Written By: Rahul Shrivastava Student: HNLU, Raipur