The rights of women as coparcenars

The Rights Of Women As Coparcenars In A Hindu Joint Family

Introduction

The paper is an attempt to showcase the Hindu succession laws as per the Hindu Succession Act 1956 and Hindu succession (Amendment) Act 2005 as well the uncodified Hindu laws and apply it for determining the Rights Of Women As Coparcenars in a Hindu Joint Family.The paper will address the issues related to (i) The Laws of inheritance and succession in the Medieval Hindu Personal laws and their implication towards the Rights for Women, (ii)The Laws of Coparcenary for The Hindus in the present era and its implication towards women who is a member of a joint Hindu family and (iii) Also whether the Hindu Succession (Amendment) Act 2005 is an error free legislation or not?One significant idea behind the evolution of family in human society is of providing security to members. The Personal Laws In India work as a source of rules and regulations which act as guidelines for people of a particular sect or religion.

The Indian Penal Code, 1860, defines Personal laws as “The law which governs certain aspects of a person's relationships or rights or privileges in regard to certain matters such as succession, marriages, etc, by virtue of his belonging to a particular community or group”. Therefore Personal Law presumes if a particular person follows it then he consents his membership to that community. In the Indian context, Personal Law refers laws adopted by communities like Hindus, Muslim , Christian and Paarsi community. The Judicial system in India from the colonial era has put its effort on codifying these Personal Laws . The general principles of inheritance in Hindu Law are codified in the Hindu Succession Act of 1956. The act came into existence into force on 17 June 1956, with the basic objective of providing a comprehensive and uniform scheme of intestate succession for Hindus.

The enactment of the act had to pass through certain hurdles. There were certain provisions which were not accepted by the leaders of various branches of Hindu Law. The act abolished “ the distinct Laws of Succession under the Dayabhaga and Mitakshara systems and provides a uniform law, based on natural love and affection and nearness in relationship. The most important feature of codification of Hindu Law was identification of Rights of women in the Hindu Joint Family.

In the words of saxena, the concept of limited estate for Hindu women was abolished and was replaced by Absolute ownership. Again the act provided for two different schemes for male and female intestates in which the female intestates had a further divergence linked with the source of acquisition of the property that is a subject matter of succession. However, on the recommendation of the 174th Law Report of the Law Commission on ‘Property Rights of Women-Proposed Reforms Under Hindu Law' , The Hindu Succession (Amendment) Act was established in the Rajya Sabha on 16th August 2007.The act primarily amended Sec 6 of the Hindu Succession Act(1956) and provided equal Copercenary Rights to the daughter of a Joint Hindu Family.

Women's Status During The Medieval Era In A Hindu Joint Family

Wealth provides security to individuals.According to Dharma Shastra it is the duty of the householders(Grahasta) to provide safety and security to children, the old, and the infirm and other such members of the family who cannot be independent. The father in a patriarchial society is expected to take care of his family. In a Joint Hindu Family where a number of individuals live together the economic resources owned by each one of them are transferred to a common fund. This entire compound of fund is controlled by the senior most member of the family which is called the ‘Karta'.The Dharma Shastra tries to safeguard the interests of the diversified sections of the society.

With the passage of time efforts have also been made to recognise the rights of women as mothers, daughters in law, widows of deceased male members, daughters and even unwed and illegitimate keeps.In the medieval era the law of inheritance were basically governed by two schools of thought namely the Mitakshara and The Dayabhaga system. Prior to the enactment of the Hindu Succession Act 1956 the ruling canon in determining the order of succession in Mitakshara system was propinquity and in the Dayabhaga system it was religious efficacy.The Dharma Shastra confers right towards married women. According to Mathur, Dharma Shastra presents various stages of evolution of law on the wife's right to property, particularly her husbands property- both self acquired and ancestral. Again Apastamba said that the husband and wife had a joint interest (in the acquisition and disposal of wealth).

The importance of mother in deciding the matters related to Joint Family Property can be gauged from the following remark of Manu Smriti , “brothers may take equally the ancestral wealth after the mother and the father alive.” Again Yajnavalkya also means that the sons shall divide their ancestral estate and the paternal debts equally upon the death of both the parents.The Dayabhaga system lays down that after the death of the father the sons do The Dayabhaga system lays down that after the death of the father the sons do not possess any right to independently divide the property throughout the life of the mother. However the sons may divide with the consent of the mother. Jimutavahana further lays down that , where a person leaves behind more than one widow, each having an equal number of sons, the widow may partition the property among themselves not possess any right to independently divide the property throughout the life of the mother.

However, in the Mitakshara system the son is recognised as a co-owner with the father of all the ancestral property and has an interest in the property since birth. Again. The consent of mother for partition is irrelevant in this system.The Shastas, for instance the Yajnavalkya have recognised the wife's share in the property when the husband is alive. In this context the concept of Stridhana, is recognised by various schools of thought.

According to Mayne's Hindu Law and usage “the property held by a women is called Stridhana.” Women are awarded the right to hold separate property under Hindu Law. There are various forms of properties which are received by women as Stridhana. They include:-

• Before the nuptial fire
• At the bridal possession which she is led from her father's house to her husband's dwelling
• Bestowed in token of love
• Gifts from father, mother and brother
• Gifts from bandhus , and so on

In the medieval times, even though the wives were allowed to hold the property but their demanding partition was generally unaccepted. Apastamba , has stated that husbands and wives were joint owners of the propertyand that no division was possible. According to an issue raised by Devana against Y.S. II 115 , the wife and husband cannot separate like sons and that the wife holding property separately from the husband, only implies that when the husband divides the sons from herself he should take a share for his wife as well and keep it under his control along with his own share.The schools of Hindu Law in the medieval times recognised the Rights of Unmarried sister in a Hindu Joint Family.

According to The Dharma shastras, the unmarried sisters have the right to be mentained by her father and brothers, and also the Right to be married off for which the father or the brother may draw from the ancestral corpus. Again, the duty of Marrying off the sister is also vested off with the father and the brother. It has been laid down by Manu that each brother must give one fourth of the share to the unmarried sister.

Again the Yajnavalka prescribes that the ‘married' brother must give one fourth of their ‘for the marriage of the unmarried sisters' The term ‘one fourth' has been criticised for a lot of time now. According to Mitakshara ‘ one forth did not mean one fourth of the each brothers share but only one fourth of the share that the daughter would have received if she were a son' Candeswara echoes the verdict of Mitaksara by saying that though several texts mention that ‘ one fourth' share is to given by the brothers it need not be taken literally. Again Devana Bhata , has discussed this issue in detail.

In his words, if the ancestral home is small then each brother xhall give one fourth share of his holding towards the marriage of the sister. Again, when the paternal wealth is large then the brothers can contribute as much as they can. Similarly, if the number of sisters is very large then the brothers have to follow Manu's rule, and contribute one fourth share for the wedding of all the sisters together.

Recognition Of The Rights Of Women Post Colonialism And In The Present Era

The rights of the women were firstly recognised by The Hindu Women's Right To Property Act 1937. The act was one of the first legislation for the welfare of Hindu women in general. The very intention of the act was to confer better rights upon Hindu women in respect of the properties. The act in investing the widow of a member of the coparcenary with the interest which the member had at the time of his death has introduced changes which are alien to the time of his death. However in the Mitakshara coparcenary women cannot be coparcenars.

The act was later replaced by the Hindu Succession Act, 1956 . The act was adopted on 17th June 1956 . It amends and modifies the aspects of classical Hindu law and Mitakshara Coparcenary, intestate succession and even testamentary succession. The act further abolished the difference between the Mitakshara and Dayabhaga System .Most importantly the system abolished the concept of limited estate to women and replaced it with absolute ownership. Again the act provided for two different schemes of succession for male and female intestates. The act provides for totality of testamentary disposition of the property.However, the act could not depart from the concept of stridhana even though it made radical progress with the conferment of absolute ownership on the women.

Again, according to saxena, on one hand the determination of the heir was done on the basis of nearness or natural love with and affection, and not on the basis of consanguinity and religious efficacy, the rule was limited to Class I and Class II of heirs, but on the other hand in case of remoter category the preference was given to male chain. Also with the retention of the mitakshara system a lot of its fundamental principles are still in operation. The Hindu Succession Act 1956 deleted the concept of saviour ship from the provisions of coparcenaries' in Hindu Joint Family. The concept of saviour ship means that the moment a son is born in a Hindu Joint Family; he takes over interest in the coparcenaries'. The other salient feature of the act was introduction of the concept of will in the testamentary succession laws.

Even though intestate succession laws was the area where the act concentrated but still it stated the a male or a female Hindu can create a will of his property . This will takes affect from the date of the death of the person creating the will.The Rights of the Women as Coparceners were formally recognised fairly recently with the Hindu Succession (Amendment) Act 2005. The act is considered as a landmark form of legislation as far as women's rights are concerned. Sec. 6 of the Hindu Succession Amendment Act introduces a daughter as a coparcener in a Hindu Joint Family irrespective of her marital status. Before this Amendment act four states had brought about a similar change .Thus the discrimination between the daughter and the son has come to an end as her rights and liabilities are same as that of the son.

The Act has made a noteworthy effort to look that the marital status of the daughter on or before the enactment of this Act does not affect her coparcenary right and therefore no discrimination prevails between the married and unmarried daughter.There are again some issues on which the Act of 2005 can be contested. The issue of discrimination on the grounds of gender on the issue of saviour ship has been highly criticised. Sec.6(2) of the act says that, the female will hold the property with incidents of coparcenary ownership. However, the legislation has not explained what these incidents of coparcenary property are? Thus, in this condition while applying the principles of Medieval Hindu Law it can be explained the property will either be jointly held by the coparceners or it will be subject to saviour ship.

However, the concept of saviour ship has been abolished for the male members of the coparcenary. Thus, this creates a discrimination on the grounds of gender on the issue of coparcenary. The Act also recognises the right of the daughter with respect of notional partition.The Act also abolishes the provision relating to the inapplicability of including Agricultural property under the purview of the act. However at the same time it does not clarify whether agricultural property would be or would not be subject to the application of the act. The deletion of Sec.4(2) from the act has brought an ambiguity over the issue of Agricultural Property.

The provision meant that the act will not apply over agricultural property a state statute is already present. But the state governments usually follow a policy according to which it has a uniform code for land related matters. Thus, diversity would exist state wise with respect to laws governing agricultural property.Again the act also deletes Sec.24 of the act which doesn't provide the Right of Coparcenary to certain remarried widows. The earlier law only included three widows i.e, widow of a predeceased son, widow of a predeceased son of a predeceased son and brother's widow. The act includes all the widows irrespective of their status.

The act provides the female coparceners to make their testamentary disposition of heir property. A female coparcener is empowered to dispose of her wealth by writing a will. In this regard the amended Sec. 30 of he act specifically includes the words “ disposed of by him or her” instead of “ disposed of by him”.The Act also abolishes special rules relating to dwelling house.

According to Saxena, one of the major discriminatory provisions under Hindu Succession Act 1956 was Sec.23, which specified special rules relating to the devolution of a dwelling house. The clauses of Sec.23 of the Act before its abrogation provided that where a Hindu intestate has left surviving both male and female heirs and that his property includes a dwelling house which is occupied by the members of his family then any female heir of the Hindu intestate cannot claim partition of the dwelling house until and unless the male heirs also consent for its partition.. Moreover, if the female heir is an unmarried daughter or is separated by her husband or is a widow then she can claim for Right of Residence.

The Hindu Succession (Amendment) Act 2005 amends this provision and promotes gender equality.

Conclusion

Hindu Succession Laws have certainly become dynamic with the passage of time. Women's Right to Property have gradually been recognised by the Codified Hindu Personal laws. With The Hindu Succession(Amendment) Act 2005, Hindu women are been empowered equal Rights when compared to male in the matter of Coparcenary by birth..

However, there still exists some grey areas on which the provision of the act are not clear. One such area is when a Hindu male marries a Non -Hindu female then an offspring of theirs will not be regarded as a Hindu Joint Family Coparcenar. Again, the matter of abolishing Saviour ship by birth for male child and the lack of clarity on this matter for a female child is also a cause of concern.

Similarly, there is confusion in on the matters of Agricultural Property. The Amending Act also does not provide any clear ruling on the matter of devolution of Property of a female. If a Hindu Female gets a share of her coparcenary property, marries and dies, then who would succeed to her interest -her husband or her natal family members? The interest of the female coparcener should ideally be given to her husband and her children.The issue concerning the Women's Rights in a patriarchial Hindu society is really concerning.

Formulation of legislations like Hindu Succession Act 1956 and The Hindu succession(Amendment) Act 2005 largely helps in the establishment of the basic constitutional tool of Right to Equality. However, as mentioned above the statute must avoid confusion on certain matters. Again on the other hand the women community must be made aware of their rights so that they can utilise it for their benefit.

Bibliography

Statute

a. Hindu Succession Act(1956)b. Hindu Succession (Amendment) Act (2005)c. Hindu Women's Right To Property Act 1937

Articles, Notes And Comments In Journals, Books And Colloquia

a.8 Halsbury's laws of India, 274-331(2007)b. Dayabhaga D.B III 1.1, 1.9C. Manusmriti M.S IX 104, 118d. SC II PP: 625-627e. Yajnavalkya Y.S II 117, 124

Books

a. Ashutosh Mathur, Medieval Hindu Law, 62- 112, Cambridge University Press,b. G.C.V. Subba Rao, Family Law, Gogia Law Publishersc. Mayne's Hindu Law and Usage, 840, (12th ed.1986)d. Mulla on Hindu Law, 201(17th ed. 1999)e. Poonam Pradhan Saxena, Family Law Lectures Family Law II, Lexis Nexis Butterworths

Statutes

a. Commissioner Income Tax v Govind Ram Sugar Mills, AIR 1966 SC 240b. Anar devi and ors v Parmeshwari Devi and ors SC 4171 (2006)c. Sheela Devi and ors v Lal Chand and ors SC 4326 (2006)

Miscellaneous

a. P. Ramanatha Aiyer, Concise Law Dictionary, 872, (3rd ed. Repriint 2007)