efficacy of relevant legislation in enlarging the right of the woman: hsa perspective

8/13/2019 Efficacy of Relevant Legislation in Enlarging The Right of the Woman: HSA Perspective

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Efficacy of Relevant Legislation InEnlarging The Right of the Woman

HSA Perspective

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ABSTRACT

The paper deals with the efficacy of relevantlegislation in enlarging the right of the Hinduwomen in ancestral property. The author hasdealt Indian legislation dealing with the right of

property i.e. Hindu Womens Right to PropertyAct, 1937 and The Hindu Succession Act, 1956including The Hindu Succession (Amendment)

Act 2005.

At the outset of the paper, author has

introduces the topic to get the reader priorsituation before codification of any suchlegislation. Then, paper deals with the Hinduwomens Right to Property Act, 1937 with itsbasic feature and its loopholes which led to theenactment of the Hindu Succession Act, 1956.The paper briefly describes this legislation withits loopholes and then deals with the 2005

Amendment Act which finally boosted thewomens right to property and brought maleand female on equal footage. Lastly, paper

deals with the critics of the amendment.


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Efficacy of Relevant Legislation In Enlarging The Rightof the Woman HSA Perspective

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Introduction

From the ancient times, all laws have been exclusively for the benefitof men and women have been treated as subservient and dependenton male support. Theoretically, though the women could hold propertybut in practice, its quantum in comparison to mens holding, her right todispose of the property was limited. Indian women have very limitedrights over the property as compared to the women of developedcountries which are very important for the freedom and development ofa human being.

The Hindu Womens Right to Property Act, 1937 was one of the mostimportant enactments that brought about changes to give better rights

to women, before it the property of women comprised Stridhan andnon-stridhan. The said Act was the outcome of discontent expressedby a sizeable section of society against the unsatisfactory affairs of thewomens rights to property. Even the said Act did not give an absoluteright to women.

The Hindu Succession Act, 1956 introduced many reforms and itabolished completely the essential principle that runs through theestate inherited by a female heir, that she takes only a limited estate. Ithas codified the law which was derived from the ancient scriptures andlaid down a uniform and comprehensive system of inheritance.

But, The Hindu Succession (Amendment) Act, 2005 confers for thefirst time the right to daughter of a coparcener to become coparcenerby birth in her own right as son and declared that the daughter shallhave the same right in the coparcenary as she would have if she hadbeen the son.


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Hindu Womens Right to Property Act, 1937

The Hindu Womens Right to Property act was passed in 1937 withprospective in nature1 and applied to property other than agricultural

property2 and impartible estates, which either under a customs orotherwise, went to a single heir. It applied to Hindus governed byMitakshara, Dayabhaga and customary law of Punjab. Section of the

Act expressly repealed the Pre-Act Customs and rules of laws thatwere contrary to the provisions of the act.

The Act governed the devolution of the property of a male Hindu onlyand not the property of female.3 Consequently, the property of afemale Hindu developed according to the rules of Hindu Law, whichprovided a distinction between inheritance to stridhan and non-stridhan. This widened the gap between succession to the property ofa female and a male. It also affected both the separate property aswell as the undivided share of a male Hindu in coparcenary property.

This Act was a progressive step to the recognition of the right of awidow over the coparcenary property because prior to 1937 act, thewidow succeeded only on failure of his male issue. Yet, this act wastotally silent about the devolution of her estate after her death. TheBare clause of the act provides widow was entitled the same in terestthat the deceased husband had. It has created confusion with respectto her status, quantum of the interest and also the mode of the

devolution of this interest in her favour as her husband had acquiredan interest by birth in that property, while widow could get it only on hisdeath.

Loopholes in the Act

There were some perplexing questions that were left unanswered bythe act.

1Krishtappa v. Ananta Kalappa Jarathakhane AIR 2001 Kant 3222

Kotaya v. Annapurnamma (1945) Mad 7773Sham Lal v. Amar Nath AIR 1970 SC 1643


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1. Widow took the deceased husbands interest, did acquire thestatus of coparcener, had right to claim partition but was not a

coparcener

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. She will remain as a member of Hindu Jointfamily.5

2. There was ambiguity regarding whether widow received theshare of her husband by inheritance or through survivorship,

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there was always conflict of judicial opinion, but thepredominant and perhaps the appropriate view was that shetook it by inheritance as being a female and non-coparcener.

3. This act was totally silent over the right to unchaste widow frominheriting the property of her deceased husband.

The Hindu Succession Act, 1956

The new 1956 Act has ended various confusion, ambiguity andcontroversy regarding the exact share that the widow took on thedeath of her husband as an undivided member in Mitaksharacoparcenary. Now, she could inherit the separate property of herhusband as his primary heir, and the quantum of her share and thenature of her estate are absolutely identical to that of the son.

Women became the absolute owner under Section-14 of the HinduSuccession Act, 1956, with the basic objective:

1. To remove the disability of a female to acquire and holdproperty as an absolute owner.

2. To convert the right of woman in any estate held by her as alimited owner into an absolute owner.

4Rosamma v. Chenchiah (1943) 2 Mad LJ 1725

Seethamma v. Veeranna AIR 1950 Mad 7856Natarajan v. Perumal (1942) 2 Mad LJ 668


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The provision was retrospective in the sense that it enlarged the limitof the estate into an absolute one even if the property was inherited or

held by the woman as a limited owner before the Act came into force.Any property acquired under the 1937 Act held in capacity of a limitedowner was now converted to her absolute estate. The HinduSuccession Act, 1956 abrogates all the rules of the law of successionhitherto applicable to Hindus whether by virtue of any text or rule ofHindu law or any custom or usage having the force of laws in respectof all matters dealt with in the Act. Therefore, no woman can bedenied property rights on the basis of any custom, usage or text andthe Act reformed the personal law and gave woman greater propertyrights. The daughters were also granted property rights in their fathersestate.

It is interesting to note that except section 14(1), there is no otherprovision in the entire Hindu succession act, 1956 which specifies thenature of interest that a Hindu woman takes in the property that shemay inherit under the Act.

Loopholes in the Act

However Section-6 of the Act clearly states that in the case of jointfamily property, known as coparcenary property, the interest of a maleHindu, on his death, would devolve by survivorship upon the survivingmember of the coparcenary and not in accordance with the above said

provision. Coparcenary consists of grandfather, father, son and sonsson. However, if the deceased had left him surviving a female relative(daughter, widow, mother, daughter of a predeceased son, widow of apredeceased son, daughter of a predeceased son of a predeceasedson, widow of a predeceased son of a predeceased son) the interest ofthe deceased in the coparcenary shall devolve by testamentary orintestate succession, as the case may be, under this Act and not bysurvivorship.

For instance, A (who had an interest in the coparcenary property) diesleaving behind him his 2 sons B & C and a daughter D. When he was

alive, B & C (sons) were members of the coparcenary and D


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(daughter) was not a member of the coparcenary. On the death of A,his daughter D will get only 1/3 share in the 1/3 share of her father in

the coparcenary property. It means the sons B & C will get 1/3 +1/9each whereas the daughter D will get only 1/9 share in the property.

Under Section 23 of the Hindu Succession Act, 1956, where a Hinduintestate has left surviving him or her both male and female heirs andhis or her property includes a dwelling house, wholly occupied bymembers of his or her family, the right of any such female heir to claimpartition of the dwelling house shall not arise until the male heirschoose to divide their respective share therein; but the female heirshall be entitled to a right of residence therein; Provided that wheresuch female heir is a daughter, she shall be entitled to a right ofresidence in the dwelling-house only if she is unmarried or has beendeserted by, or has separated from, her husband or is a widow.

Hence, the provisions of the Hindu Succession Act, 1956 have also notgiven absolute power to female and discriminate the right of theproperty among male and female. Therefore, if one says the HinduSuccession Act, 1956 remain the weapon to a man to deprive awoman of the rights as she earlier had under certain schools of HinduLaw.

To remove the said gender discriminatory provisions the HinduSuccession (Amendment) Act, 2005 was enacted and came into force

on 9th September, 2005.

The Hindu Succession (Amendment) Act, 2005

This is the product of 174th Report of the Law Commission of India on"Property Rights of Women: Proposed Reform under the Hindu Law",intended to achieve the goal of removal of discrimination among themale and female heirs relating to intestate succession amongstHindus. The Act brought about the revolutionary changes in the OldHindu Law.


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Omission of Section 4(2)7of the HSA, 1956

It has deleted a major gender discriminatory clause - Section 4 (2) ofHSA, 1956, which has made women's inheritance rights in agriculturalland equal to men's. Section 4(2) excluded from the purview of theHSA significant interests in agricultural land, the inheritance of whichwas subject to the succession rules specified in state-level tendril laws.Especially, in the north-western states, these laws were highly genderunequal and gave primacy to male lineal descendants in the male lineof descent. Women came very low in the succession order and gotonly a limited estate. The new legislation brings male and female rightsin agricultural land on par for all states, overriding any inconsistentstate laws and conferring equal rights in the matter of succession andinheritance.

8This can potentially benefit millions of women dependent

on agriculture for survival.

Substitution of Section 6

Section 6 substituted by the Hindu Succession (Amendment) Act, 2005has introduced revolutionary changes in the concept of Mitaksharacoparcenary. It has removed the discrimination between the son anddaughter given equal coparcenary rights to male and female underHindu Mitakshara Joint family. It is prospective not retrospective.9

Section 6(1) confers for the first time the right of a daughter of acoparcener to become coparcener by birth in her own right as son. Ithas declared that the daughter shall have the same right in thecoparcenary as she would have if she had been the son and subject to

7(2) For the removal of doubts, it is hereby declared that nothing contained in this Act shall

be deemed to affect the provisions of any law for the time being in force providing for

fragmentation of agricultural holding or the fixation of ceilings or for the devolution of

tenancy rights in respect of such holdings.8G. Sekar v. Geetha (2009) 6 SCC 999

Prabhat Chnadra Pattanayak v. sarat Chandra Pattanayak 2008 (66) AIC (Ori)


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the same liabilities in respect of the said coparcenary property as thatof the son.

Section 6(2), declares that any property to which Hindu femalebecomes entitled by virtue of section 6(1), she is capable of beingdisposed by testamentary disposition as daughter became thecoparcener to the Mitakshara Hindu joint family.

Section 6(3), provides that When a Hindu dies after thecommencement of the Hindu Succession (Amendment) Act, 2005, hisinterest in the property of a Joint Hindu family shall devolve bytestamentary or intestate succession, as the case may be, under this

Act and not by survivorship, and the coparcenary property shall bedeemed to have been divided as if a partition had taken place, and,-

a) the daughter is allotted the same share as is allotted to a son;

b) the share of the pre-deceased son or a pre-deceased daughter,as they would have got had they been alive at the time ofpartition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

c) the share of the pre-deceased child of a pre-deceased son or ofa pre-deceased daughter, as such child would have got had heor she been alive at the time of the partition, shall be allotted to

the child of such pre-deceased child of the pre-deceased son ora pre-deceased daughter, as the case may be.

Under Sastrik Hindu Law, the son, grandson or great-garndson hadthe pious obligation to repay the antecedent debt of the father,grandfather and great-grandfather. As Section 6(1), confers upon thedaughter, the same coparcenary right under the Mitakshara Law asthat of a son, then the principle of pious obligation of the son orgrandson or great-grandson to repay the antecedent debt of the father,grandfather or great-grandfather cannot subsist. Such antecedent offather, grandfather or great-grandfather is now repaid by the son,


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grandson, great-grandson and the daughter, granddaughter, great-granddaughter with the effect from enforcement of amended Act, 2005.

Repeal of Section 23

In view of the section 23, any female heir of Hindu who died leavingclass I heirs including female has been debarred from partitioning thefamily dwelling and is entitled to claim a share in the same only whenany male heir seeks partition of such dwelling house. Even at the timewhen Hindu succession Act, 1956 was enacted, various womensorganization had voiced grievance that though the 1956 Act madecommendable inroads into erstwhile Hindu System of inheritance stillgender discrimination against the women was not fully done away withthe 1956 Act, and with this object keeping in view section 23 has beenomitted.

This omission has disentitled the female heir to ask for the partition inrespect of a dwelling house wholly occupied by the joint family until themale heirs choose to divide their respective share therein.

10 The

operation of the omitted statute is prospective in nature.

The view of Karnataka High Court, expressed in Rathnakar rao v .leela Ashw ath

11is as:

The effect of omission of section 23 of the act would apply to all

proceedings whether original or appellate involving adjudication of therights of the parties and pending as on 9thSeptember 2005 or initiatedafter that date

Omission of section 24

10Prabodh Chand v. Vijay Kapoor 2009 (83) AIC (P & H HC)

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2007 (5) RCR (civil) 509


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The legislation removes a discriminatory section which barred certainwidows from inheriting the deceased's property, if they had remarried.

The reason behind the proposition of this bare clause is, on the datewhen the succession opened and the widow did not marry, she couldsucceed to the property and acquire absolute right therein undersection 14 of the Act. Consequently, property once vested absolutelyto her could not be divested.

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For better understanding, example of Baliram v. Rahubai13

can betaken.

The Hindu widow after acquiring her share in the joint property as theheir of husband prior to the Hindu Succession Act came into force

because absolute owner of such property under section 14(1) of theAct, after passing of the Hindu Succession Act which would not bedivested after her re-marriage. But, if after her re-marriage, her father-in-law died, she would not inherit the property as an heir of thedeceased father-in-law as she had prior to such death had remarried.Her brother-in-law, being the surviving son of her father-in-law wouldinherit the share of father-in-law.

Thus, the amendment of Hindu Succession Act of 1956 in 2005 is atotal commitment for the women empowerment and protection ofwomen's right to property. This Amending Act in a patrilineal system,

like Mitakshara School of Hindu Law opened the door for the women,to have the birth right in the family property like the son. The womenwere vested the right of control and ownership of property beyond theirright to sustenance.

12

Chanda v. Khubala AIR 1983 Pat 3313Bom 57


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Criticism of Hindu Succession (Amendment) Act, 2005

The amendment will only benefit those women who are born intofamilies that have ancestral property. There is no precise definition ofancestral property. Given the fact that families have long since beenfragmented and the fact that the joint family system is on the decline, itis 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 propertymust follow principles of succession under the different successionlaws. Moreover, its owner can dispose off such property during hislifetime by gift. It can be bequeath by will to anyone of his choice. Theproposed amendment notwithstanding, a Hindu father can disinherithis wife or daughter by will, in his self-acquired property. Theamendment therefore by itself cannot offer much to Hindu women.What is more, under the laws of certain states, it will actuallydisadvantage widows, as the share of the daughter will increase incomparison to the widow. The amendment is not at all well thought outand can play women against each other. There is no equity in that.

Thus, though seemingly progressive, it does nothing more than makea political point, that the state is committed to abolishing discriminationagainst women, but only Hindu women. The position of women

married into the joint family will actually become worse.

The proposed amendment only makes the position of the femalemembers of the joint family worse. With a daughter along with the sonsacquiring a birthright, which she can presumably partition at any time,the rights of other members of the joint family get correspondinglydiminished. While the reforms of the 1950s disadvantaged a divorcedwife, the reforms of the present times will disadvantage marriedwomen as well. Until now, the only protection women had in the maritalhome was the status of being married, which carried with it the right tobe maintained, not only by the husband, but by the joint family and its

assets as a whole.


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Thus, married women who lived in a joint Hindu family had theprotection of the family home. This protection will now stand eroded, to

the extent that the total divisible amount gets reduced. Somethingsimilar will happen to Hindu widows. Daughters will acquire a birthrightin Hindu joint family property; mothers stand to lose a portion of thecake, 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 equalshare with the sons and daughters, if the marriage was subsisting onthe death of the husband. On divorce, of course, even that right toinheritance disappears. It is birthright in Hindu law that is the root ofthe problem. Birthright by definition is a conservative institution,belonging to the era of feudalism, coupled as it was with the rule ofprimogeniture and the inalienability of land. When property becomesdisposable and self-acquired, different rules of succession have toapply. It is in the making of those rules that gender justice has to belocated. What the proposed amendment does is to reinforce thebirthright without working out its consequences for all women.

Justice cannot be secured for one category of women at the expenseof 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.


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Conclusion

Empowerment of women, leading to an equal social status in societyhinges, 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 statusremains elusive. Establishment of laws and bringing practices inconformity thereto is necessarily a long drawn out process. Thegovernment, the legislature, the judiciary, the media and civil societyhas to perform their roles, each in their own areas of competence andin a concerted manner for the process to be speedy and effective.

These amendments can empower women both economically andsocially and have far-reaching benefits for the family and society.Independent access to agricultural land can reduce a woman and herfamily's risk of poverty, improve her livelihood options, and enhanceprospects of child survival, education and health. Women owning landor a house also face less risk of spousal violence. And land in women'snames can increase productivity by improving credit and input accessfor numerous de facto female household heads.

Making all daughters coparceners likewise has far-reachingimplications. It gives women birthrights in joint family property thatcannot be willed away. Rights in coparcenary property and thedwelling house will also provide social protection to women facing

spousal violence or marital breakdown, by giving them a potentialshelter. Millions of women - as widows and daughters - and theirfamilies thus stand to gain by these amendments.


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Bibliography

1. B.M Gandhi, Hindu Law, 2ndEdn.,2003, Eastern BookCompany

2. Dr. Basant K. Sharma, Hindu Law, 2nd Edn.,2008,Central Law Publication

3. Dr. Poonam Pradhan Saxena, Family Law II Lectures,3rdedn, 2006, Lexis Nexis, Butterworth

4. Dr. S.R. Myeneni, Hindu Law (Family Law-I) 1

st

Edn.,2009 Asia Law House, Hyedrabad

5. N.R. Raghavachariar, Hindu Law Principles andPrecedents, 8thEdn.

6. Paras Diwan, Modern Hindu Law, 9th Edn, 2008,Allahabad Law Agency

7. R.K Agrawal, Hindu Law, Reprint 2006, Central LawAgency

efficacy of relevant legislation in enlarging the right of the woman: hsa perspective

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