3/23/2019 Manupatra Articles

Subject : FAMILY LAW

Title : A Paradigm Of Hypocrisy Of Law

Author : Mr. Shabbeer Ahmed Shaik

Hindu Succession (Amendment) Bill, 2004:

A Paradigm of Hypocrisy of Law

An Introduction to Hindu Succession (Amendment) Bill, 2004

Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws governing the
inheritance/succession of property amongst the members of a Joint Hindu family. It seems that this discrimination is so deep and systematic that it has placed women at the receiving end.
Recognizing this the Law Commission in pursuance of its terms of reference, which, inter-alia, oblige and empower it to make recommendations for the removal of anomalies, ambiguities
and inequalities in the law, decided to undertake a study of certain provision regarding the property rights of Hindu women under the Hindu Succession Act, 1956 in its 174th Law
Commission Report on “Property Rights of Women: Proposed Reforms under Hindu Law”. The study is aimed at suggesting changes to this Act so that women get an equal share in the
ancestral property.

The proposed amendments to the Hindu Succession Act once again raise the question, do we need reform for Hindu women, or for women generally, regardless of the religion to which they
belong? And what exactly constitutes reform, what does gender justice mean for women in the realm of family laws? For the moment it seems that the UPF government has decided to
give Hindu women a fair deal in the matter of inheritance, forgetting other women. There seems no stated public policy objective as to why only Hindu law needs reform to make it gender
just and no other laws. A statement of policy would be much appreciated to evaluate the present move

The Government on December 19, 2004 has introduced a legislation in the Rajya Sabha to amend the Hindu Succession Act providing for equal rights to daughters with regard to ancestral
property. The Hindu Succession (Amendment) Bill, 2004 follows recommendations of the Law Commission regarding reform of the Hindu Law on property rights of women. The Bill,
introduced by Law Minister H R Bhardwaj, proposes to remove the discrimination in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the "Hindu
Mitakshara Coparcenary Property" as the sons have. The section 23 of the present act disentitles a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint
family until male heirs choose to divide their respective shares. The Bill proposes to omit section 23 to remove the disability on female heir with regard to getting share of the ancestral
property. This amendment which lays down comprehensive system of inheritance will apply to every Hindu and also Buddhist, Jain or Sikh. Andhra Pradesh, Tamil Nadu, Karnataka and
Maharashtra have already made necessary changes in the law giving equal rights to daughters in the ancestral property.

Succession Laws In General And Hindu Law In Particular

Universally, succession is either testamentary or intestate. In either case, it comes into existence on the death of the property owner. In almost all countries of the world, a person has the right
to make a will in relation to his or her own property in favour of anyone.

Muslim Personal Law places a restriction on the extent of property that can be willed, leaving the other portion to devolve on heirs. Only one-third of a man’s property can be willed; two-
thirds will devolve on Koranic heirs, which include children and parents in varying shares. Female heirs inherit half that of male heirs. Some countries have imposed restrictions by law on
testamentary succession, prohibiting a person from willing away his entire property in exclusion of his heirs, as a matter of public policy. Certain countries do not permit a person to
disinherit totally, a female heir. In counties that have traditionally discriminated against women, this had been found to be a necessary provision.

In Christian law, intestate succession to all property is determined by the Indian Succession Act. A man’s widow and children, male and female, inherit equally. However, a man may, by
will, bequeath his or her property to anyone, totally disinheriting his own children and widow. Until 1982 however, Syrian Christians were governed by a local law, which limited a
daughter’s claim in her father’s estate to Rs. 5,000, the rest going to the sons. Mary Roy successfully challenged this law and the Indian Succession Act now governs succession to property.

Mitakashara school of Hindu law recognises a difference between ancestral property and self-acquired property. It also recognises a coparcenary. A coparcenary is a legal institution
consisting of three generations of male heirs in the family. Every male member, on birth, within three generations, becomes a member of the coparcenary. This meant that no person’s share
in ancestral property could be determined with certainty. It diminished on the birth of a male member and enlarged on the death of a male member. One of the coparceners, generally the
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senior, was the kartar, that is, the manager. Women could never become members of the coparcenary. Any coparcener had the right to demand partition of the joint family. Once a partition
took place, a new coparcener would come into existence, namely the partitioned member, and the next two generations of males would form the new coparcenary. As the member who
sought a partition got his property from his ancestors, the property became ancestral property and hence capable of being coparcenary property. Coparcenary rights did not exist in self-
acquired property, which was not thrown into the common hotchpotch of the joint family.

Thus the concept of a birthright, at which a person acquires rights on his birth even if the ancestor is still alive, was fundamental to an understanding of the coparcenary. In fact, the birth of a
male child diminishes the right of the ancestor instantly, as each coparcener has an equal share in the undivided whole.

As contrasted with this, inheritance, whether testamentary or intestate, is a right that accrues on the death of a person. Inheritance can only be in that property which a man leaves on his
death. Until then, a person has an unrestricted right to enjoy the property or alienate it.

The Hindu Succession Act was enacted in the 1950s, in an attempt to reform Hindu law and make it more gender just, and it was clarified that the death of a man would result in a deemed
partition of his share in the joint property. This partitioned share would then be distributed equally among his children and widow. His self-acquired property would be divided equally
among his sons and daughters and widow. To the extent that the Act provided for the equal distribution of self-acquired property and the equal distribution of the property deemed to be
partitioned, it was a progressive move. But the son’s birthright was kept intact. Thus the son had both birthright in ancestral property and a right to inherit equally in self-acquired property.

The proposed Hindu Succession (Amendment) Bill, 2004 now attempts to make daughters coparceners at birth in ancestral property. To begin with, the amendment will only benefit those
women who are born into families that have ancestral property. There is no precise definition of ancestral property. Given the fact that families have long since been fragmented and the fact
that the joint family system is on the decline, it is not at all clear whom this law will benefit. It cannot apply to self-acquired property. No person by birth will acquire any rights in 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, its owner can
dispose off such property during his lifetime by gift. It can be bequeath by will to anyone of his choice (except in Muslim law, where only one-third of the property can be willed to people
other than Koranic heirs). The proposed amendment notwithstanding, a Hindu father can disinherit his wife or daughter by will, in his self-acquired property. The amendment therefore by
itself cannot offer much to Hindu women. What is more, under the laws of certain states, it will actually disadvantage widows, as the share of the daughter will increase in comparison to
the widow. The amendment is not at all well thought out and can play women against each other. There is no equity in that. Thus, though seemingly progressive, it does nothing more than
make a political point, that the state is committed to abolishing discrimination against women, but only Hindu women.

Position Of Women Married Into The Joint Family After The Amendment

Hindu law not only recognised the coparcenary, but also the Hindu joint family, which was a more inclusive institution. All women of the family be they daughters or wives, were
members of the Hindu joint family. They had an absolute right to be maintained out of the joint family properties. Daughters have a right to stridhan and to marriage expenses. Wives and
widows had the right to be maintained for life out of joint family property. It was this regime of property laws among Hindus that was sought to be "reformed" by the Hindu Succession
Act, 1956 and by other Hindu laws. It was in the 1950s that this unqualified right to be maintained was eroded, with the introduction of the right to divorce. Under unmodified Hindu law,
a woman’s marital status could not be altered by divorce, as divorce was not permitted. This right to maintenance could be secured by a charge on the property of the joint family. The so-
called reforms of the 1950s introduced the right to divorce without simultaneously giving the divorced wife the right to her share of the joint family property; divorce meant an expulsion
from the joint family and the loss of the right to be maintained. Thus the seemingly progressive right to divorce has turned out to be nothing more than the right to a divorce, on pain of
losing the right to the use of joint family property. The proposed amendment only makes the position of the female members of the joint family worse. With a daughter along with the
sons acquiring a birthright, which she can presumably partition at any time, the rights of other members of the joint family get correspondingly diminished. While the reforms of the 1950s
disadvantaged a divorced wife, the reforms of the present times will disadvantage married women as well. Until now, the only protection women had in the marital home was the status of
being married, which carried with it the right to be maintained, not only by the husband, but by the joint family and its assets as a whole. Thus married women who lived in a joint Hindu
family had the protection of the family home. This protection will now stand eroded, to the extent that the total divisible amount gets reduced.
Something similar will happen to Hindu widows. Daughters will acquire a birthright in Hindu joint family property, mothers stand to lose a portion of the cake, as an inheritance. Since
Hindu law does not grant any rights to wives in marital property, their only chance of getting anything was on an inheritance, as equal share with the sons and daughters, if the marriage was
subsisting on the death of the husband. On divorce, of course, even that right to inheritance disappears.
The proposed amendment is ill thought out. It is impossible to graft reforms on a system of coparcenary, which had a certain internal logical consistency. It was based on the premise that
daughters leave the family on marriage, and women become members of the joint family on marriage and acquire rights. The patch work of the 1950s maintained the rights of the male
coparceners and destroyed the rights of a daughter-in-law of a joint family by making it possible for her to be divorced without a share of joint family property. The reforms of the
current period will destroy the rights of other categories of women, particularly widows, who will now find that family cake diminished even further.

It is birthright in Hindu law that is the root of the problem. Birthright by definition is a conservative institution, belonging to the era of feudalism, coupled as it was with the rule of
primogeniture and the inalienability of land. When property becomes disposable and self-acquired, different rules of succession have to apply. It is in the making of those rules that gender
justice has to be located. What the proposed amendment does is to reinforce the birthright without working out its consequences for all women.
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Justice cannot be secured for one category of women at the expense of another. It is impossible to deal with succession laws in isolation. One has to simultaneously look at laws of
matrimonial property, divorce and succession to ensure a gender just regime of laws. The present bill does nothing of the kind.

Section 4(2) Of the Act Left Untouched – Tenurial Rights

The unamended HSA 1956 contains two explicit sources of gender inequality and one implicit one. One, the Act, Section 4(2), exempts significant interests in agricultural land: it leaves
untouched provisions of tenurial laws concerning the fixation of ceilings, fragmentation of agricultural holdings or devolution of tenancy rights in such holdings. Hence, interests in tenancy
land devolve according to the order of devolution specified in the tenurial laws, which vary by state. In the southern and most of the central and eastern states, these laws are silent on
devolution, so inheritance can be assumed to follow the HSA. In a few states, the tenurial laws specify that the HSA or the ‘‘personal law’’ will apply. But, in the northwestern states of
Haryana, Punjab, HP, Delhi, UP and J&K, the tenurial laws do specify the order of devolution and these are highly gender unequal. Here primacy is given (as under the ancient Mitakshara
system) to male lineal descendants in the male line of descent and women come very low in the order of heirs. Also, a woman gets only a limited estate and loses the land if she remarries (as
widow) or fails to cultivate it for a year or two. Moreover, in UP and Delhi, a ‘‘tenant’’ is defined so broadly that this unequal order of devolution covers all agricultural land.
Two, females have rights to smaller property shares than males. Under the HSA (excepting Hindu matrilineal communities), the separate property of a Hindu male dying intestate devolves,
in the first instance, equally on his sons, daughters, widow and mother (plus specified heirs of predeceased sons or daughters). If previously governed under the Dayabhaga system, this rule
applies also to ancestral property. But, if previously governed by Mitakshara, the concept of joint family property is retained. In the deceased man’s ‘‘notional’’ share in the Mitakshara
coparcenary, sons, daughters, widow and mother (and other Class I heirs) are entitled to equal shares. But sons, as coparceners, also have a direct right by birth to an independent share in the
joint family property, in addition to their shares in their father’s portion; while female heirs (daughter, widow, mother) have a right only in the deceased man’s ‘‘notional’’ portion. Also,
sons can demand partition of the Mitakshara coparcenary while the women cannot. Hence even to get their part of the ‘‘notional’’ share, women have to await partition by males. Moreover,
a man can convert any part of his separate property into coparcenary property, which can further reduce women’s inheritance. Three, the Act gives a person unrestricted testamentary rights
over his/her property. In practice, the provision can be used to disinherit female heirs. Since the HSA 1956 was passed, five states have amended it. Maharashtra, Karnataka, TN and AP have
included daughters as coparceners in joint family property, while Kerala has abolished joint family property altogether. No state has amended the provisos on agricultural land.

The 2004 Bill follows the route of the Maharashtra et al amendments. It does not address the HSA’s gender inequalities comprehensively. First it will not redress inequality in agricultural
land — the most important form of rural property. Gender equality in agricultural land can reduce not just a woman’s but her whole family’s risk of poverty, increase her livelihood
options, enhance prospects of child survival, education and health, reduce domestic violence and empower women. It is therefore critical that in amending the HSA, all agricultural holdings
be brought within the Act’s purview. (Also, at the state level, amending tenurial laws to remove gender discriminatory devolution rules is imperative).

Conclusion
Third, the 2004 Bill retains unrestricted rights to testation. Restricting testamentary rights to, say, half or two-thirds of the property, as found in some other jural systems in India and Europe,
would be a step in the right direction. The 2004 Bill is based on the recommendations of the Law Commission’s 174th Report 2000, and reproduces its shortcomings. In 1999, the Law
Commission had fielded a questionnaire to NGOs and experts, soliciting responses to alternative proposals for amendments, such as whether or not to bring all agricultural land under the
HSA, and whether to abolish joint family property altogether or make daughters coparceners on the same basis as sons — 81 per cent of the responses favoured bringing gender equality in
the inheritance of agricultural land and a substantial percentage supported the abolition of joint family property. But on both counts the Commission took the conservative route. It did not
touch agricultural land and only recommended making daughters coparceners. These weaknesses went unnoticed by women’s groups.
However, if the 2004 Bill is debated in Parliament (and I hope it will be) it provides a window of opportunity for women’s groups to mobilise and ask for a more comprehensive amendment
than the Bill proposes, one that brings all property, including agricultural land, on par, abolishes joint family property, and partially restricts testation.

The statement of objects and reasons of the proposed law refer to the guarantee of equality for women in Article 14 and 15 as a justification for the amendments. One may legitimately ask
the question, are these guarantees available only to Hindu women? These considerations will apply across the board to all women of all communities. Why do only Hindu women need
equality in succession and why not Muslim women? The exercise undertaken in the manner it has been will only reinforce the system of separate and discriminatory personal laws. Reform
must be sought in those commonly agreed areas that will benefit all women. There is no law concerning the family that does not have a negative impact on women of all communities.
The major gap in our laws is the absence of rights for women within a marriage in all personal laws. This gap needs to be filled by law reform. A uniform law on marital property will go
a long way in securing the rights of women. In any event, reform of marital property law and of succession laws must be discussed simultaneously. Otherwise, we will be left with an
uncertain inheritance.
To attempt reform without considering the status of all women of all communities is an exercise doomed to failure. What is needed is a national debate on the rights of all women and the
movement towards a common gender just law for all women. The strategy of demanding reform for Hindu women alone, or supporting it, is counterproductive for the women’s movement
as it reinforces reactionary modes of thinking and leaves out of its purview large segments of women in this country. While the government may have its own reasons for adopting a strategy
of focussing on Hindu law, there is no reason for us not to raise the demand of a gender just civil code for women generally. If ever there was an opportunity, it is now. The Muslim
Personal Law Board has itself come up with the proposal that triple talaq must be discouraged and that marriage must be by a standard nikahnama. We have come a long way from 1986,
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when the Muslim Women’s (Protection of Rights on Divorce) Act was passed. We have in place a government that has shown a desire to engage in debate with civil society. The opportunity
must be seized to discuss the rights of all women and not just Hindu women.

REFERENCES
Books

1. Flavia Agnes, “Women & Law in India”, Oxford University Press, New Delhi (2000)

2. R.K.Agarwala, “Hindu Law”, 20th Ed. Central Law Agency, Allahabad (2002)

Articles
1. Amrito Das, “Notional Partition – A Critique”, AIR 2004 Journal 149

2. Indira Jaising, “An Unequal Reform”, Communalism Combat, No.104 (January 2005).
3. Bina Agarwal, “ABill of her own”, Times News Network (December 23, 2004).
4. “Hindu Succession Bill”, Outlook India, New Delhi December 20, 2004.

Statutes
1. Constitution of India

2. Hindu Succession Act, 1956

3. Hindu Succession (Amendment) Bill, 2004

Reports

1. 174th Law Commission Report (2000) on “Property Rights of Women”, Ministry of Law, Government of India, New Delhi.

Websites
1. www.manupatra.com

2. www.lawmin.nic.in
3. www.infochangenews.org
4. www.thehinduonline.com

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