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With the introduction of the Hindu Succession (Amendment) Bill 2004 in Parliament on December 20, 2004, the government has gone a step further in fulfilling its commitment towards gender equality made in National Common Minimum Programme (NCMP). The Bill to amend the Hindu Succession Act of 1956 gives women equal rights in the inheritance of ancestral wealth, something reserved only for male heirs earlier. It, indeed, is a significant step in bringing the Hindu Law of inheritance in accord with the constitutional principle of equality. The enactment of the proposed legislation would also implement the recommendations of the National Commission for Women (NCW)substantially to help bring social change in society.
Amendments
The Bill seeks to remove the discrimination as contained 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. Section 23 of the Act 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 therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.
Background
Prior to 1956, Hindus were governed by property laws which had no coherence and varied from region to region and in some cases within the same region, from caste to caste.
The Mitakshara school of succession which was prevalent in most of North India, believed in the exclusive domain of male heirs. In contrast, the Dayabhaga system did not recognize inheritance rights by birth and both sons and daughters did not have rights to the property during their father’s lifetime. At the other extreme was the Marumakkattayam law, prevalent in Kerala which traced the lineage of succession through the female line.
Former Prime Minister Jawaharlal Nehru championed the cause of women’s right to inherit property and the Hindu Succession Act was enacted and came into force on June 17, 1956.
Many changes were brought about that gave women greater rights but they were still denied the important coparcenary rights. Subsequently, a few States enacted their own laws for division of ancestral property.
In what is known as the Kerala model, the concept of coparcenary was abolished and according to the Kerala Joint Family System (Abolition) Act, 1975, the heirs (male and female) do not acquire property by birth but only hold it as tenants as if a partition has taken place. Andhra Pradesh (1986), Tamil Nadu (1989), Karnataka (1994) and Maharashtra (1994) also enacted laws, where daughters were granted ‘coparcener’ rights or a claim on ancestral property by birth as the sons.
In 2000, the 174th report of the 15th Law Commission suggested amendments to correct the discrimination against women, and this report forms the basis of the present bill.
Analysis
As the Act stands now, the woman is entitled to an equal share as her male siblings in her father’s property but has no right to ancestral property. Perhaps, the single biggest reason for the devaluation of women in our society is their perceived economic worthlessness and their inability to negotiate a better deal for themselves. The right to property eliminates, to some extent, both these hampering factors.
According to renowned jurist Ms. Leila Seth, these amendments would discourage dowry. When men grow up in the knowledge that they can not enjoy special privileges with regard to property rights, there is bound to be a change of mindset for the better. Since family law is on the concurrent list, five States have already done away with discriminatory clauses. The amendments reiterate the fundamental constitutional principle of equality before the law. More than anything, the new amendments are bound to create a sea change in women’s own perception of their worth.
Today, it is quite common for a woman to stay in an abusive marriage just because she has neither skills nor property to maintain herself. No society can claim to be a liberal democracy when it denies women their just property rights. But, the amendments are only the first step. The law can only be a path breaker, it can not ensure that justice is done. For that there must be a positive change in social mores. The law would always be a step behind. Women have to become aware that the law does not discriminate against them in property matters and that they can not be shortchanged any more. In many cases, justice is denied simply because of lack of awareness. Here, hopefully, the right to Information Act would kick in and facilitate greater access for women to know about their rights. In fact, they should be empowered and enabled to demand their rights, wherever they are sought to be denied.
Happy with the Government’s endorsement of the legislative proposal to give daughter’s from Hindu families an equal share in ancestral property, women groups are now asking for a similar right for women of other religions, including Muslims, Christians, Parsis and Jews. “It is a big battle won”, says Ms. Nirmala Seetharaman, Member, National Commission for Women. “If the government can include the same provision in personal laws of other religions, or implement it forcefully wherever is already there, it will change the whole scenario”.
Women groups have welcomed the new Bill to amend the Hindu Succession Act, 1956, but the extent to which the provision can be stretch has triggered a minor debate.
Some activists feel the provision should not have been restricted to just ancestral property. “It should hold true for acquired property as well. Most middle class families do not have inherited property but they acquire it during their lifetime. Keeping a girl out of it is unfair” said Ms. Ranjana Kumari, Director, Centre for Social Research.
But other contest this argument. “The daughter will get a share in the property acquired by her parents if they die without leaving a will. But if a father decides to pass on his property to his son or any other member, it is a matter of will. How, can you deny that to anyone”, Ms. Seetharaman argued.
Ms. Kumari said this change to the Hindu Succession Act should also apply to women who married before the amendment is enacted. According to her, there are so many women who would not gain from this. But others say it can cause logistical problems like implementing the amendment from a date in the past may create a lot of chaos.
Allowing women to act as ‘Karta’ (head of family) is another decision that would change perception of women. Ms. Ranjana Kumari said, “If a woman as head of the family is endorsed by law, there will be a marked change in her status”, she said.
The new Bill is bound to raise the demand for the reform of all personal laws that discriminate against women, more specifically Muslim personal law and also brings to the fore the issue of a uniform civil code. however, without waiting for a uniform civil code, gross gender discrimination that persists in all personal laws needs to be addressed as a priority. Shri Bhardwaj told Parliament that “we cannot speak for all communities until they are ready”. But a readiness to reform can be created by a dialogue and debate addressing the laws that discriminate against women grossly and are indefensible.
Equality for women is not just a matter of equity for the so-called weaker sex, but a measure of the modernity of Indian society and the pragmatic nature of our civilization.(PIB Features)
**Senior Freelance Writer
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