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 womenF. 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.
That apart, is this really a fair deal being offered to Hindu
women? I think not.
The United Front government has made a much-publicised
announcement that it intends to amend the Hindu Succession Act, 1955, by making
daughters coparceners in the Hindu joint family along with sons.
Before one can understand the full import of the proposed
changes, it is necessary to understand 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.
By far the most complex property laws and hence succession laws
are those applicable to Hindus belonging to the Mitakashara school of Hindu law.
This school of 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
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.
In the 1950s, in an attempt to reform Hindu law and make it more
gender just, the Hindu Succession Act was amended 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 amendment 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.
The position of women married into the joint family will
actually become worse.
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, 1955 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.
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. The exercise should be abandoned in toto.
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, 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.
