Gender justice towards Hindu Women: A legislative Perspective

Narender Kumar Bishnoi, Assistant Professor, Faculty of Law, University of Delhi

Gender inequities throughout the world are among the most all-pervasive forms of inequality. Gender equality concerns each and every member of the society and forms the very basis of a just society and hence, the issue of ‘gender justice’ is of enormous magnitude and of mammoth ramification engulfing an all-embracing and illimitable canvas. In the midnight of August 15, 1947, when India awoke to “life and freedom”, most of its 170 million women scarcely knew what the ‘Tryst with Destiny’ was all about. Victims of poverty, ignorance and oppressive social institutions, they hardly knew their destiny and who controlled it. However, the stalwarts who led India to its independence were aware that if the new India of their dreams was to become a reality and not remain only a figment of imagination, it would need social engineering on a massive scale, in respect of the backward and oppressed sections of the society and above all, its women. Swami Vivekanand had aptly remarked :

“Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind.”

Constitutional Safeguards for Women and the Liberal Interpretation of these provisions by the Judiciary Our Constitution, the fountainhead of all laws and the Organic law of the land, recognizes equality of the sexes and prohibits discrimination on the basis of sex. It also provides legislation to be made to confer more rights on women by making special provisions. It has to be borne in mind that in the absence of equality of gender, human rights remain in the  inaccessible realm. In most of the nations, women are ascribed a secondary role. This secondary role has to be metamorphosed to the primary one to bring  women at an equal stratum with men. To achieve so, a different outlook in law has to be perceived. For this reason, various provisions have been engrafted in Constitution of   India.
The Preamble of the Constitution is “a key to open the mind of the makers of the constitution which may show the general purposes for which they made the Constitution.”[4] It declares the rights and freedoms which the people of India intended to secure to all citizens.[5] The  Preamble begins with the words “We, the People of India………..” which includes men and women of all castes, religions, etc. It wishes to render “Equality of status and of opportunity” to every man and woman. The Preamble again assures “dignity of individuals” which includes the dignity of women. On the basis of the Preamble, several important enactments have been brought into operation, pertaining to every walk of life — family, succession,  guardianship and employment — which aim at providing and protecting the status, rights and dignity of women.
Position of women in Vedic ages

Position of women in India has been rather paradoxical. Since the Vedic age, On the one hand women have been enjoined to be honored and adored, Manu had said

Women must be honored and adored by their father, brother, husband and brother-in-law who desire their welfare. When women are honored, there the Gods are pleased but where they are not honored, no sacred rites yield result”.

However, surprisingly on the other hand, women are not even considered as a complete human being in her own right. She is called ‘arthangini’, a part of her husband, she is kept under subordination all throughout her life, and she is kept under the protection and control of her father and brother in her maidenhood, under the husband after marriage and under her son in her old age. She has the right of maintenance by the said persons; however she was given no right of inheritance or right to own property. Women had no right to own property except her ‘stridhan’ which were of meager value and mainly comprised of articles of gifts given at the time of her marriage and other occasions.

The inferior status of women was manifested in many forms, exclusion from inheritance were justified by referring to many religious texts and schools. Baudhayana, reputed founder of yajurveda based this theory for exclusion of women from inheritance on the teaching of Sruti which says “women are considered to be destitute of strength and of a portion” He further declares that “women are devoid of prowess and incompetent to inherit, women are useless” and the Vedas declared no inheritance for women.

In the middle ages, certain legislators included widow; mothers and daughters as heirs, but the inclusion served no practical purpose as it was at the end of long list of kin and heirs. Likewise, during the Smriti period, succession rights for widow, daughters and mother were recognized to some extent. Manu, Yajnavalkya, Narada and other writers admitted the succession rights of certain women in their writings. However, these were again subject to many conditions. A widow was only entitled to inheritance so long as she remains chaste, they did not have full authority over the property given, and it was still under the control and guidance of the sons or other male members. They also did not have power to alienate the property, i.e the properties were only given to them to serve the purpose of their maintenance; they only have life interest in it. Accordingly estates inherited by women were known as women’s estates or widow’s estates. Moreover daughters and widow could succeed to the property only in the absence of male heirs and hence succession by women was merely in theory.

Joint family system and coparcenary

Amongst the Hindus, subordination of women is manifested most clearly in the joint family system which is not just a family unit but also an economic unit. According to the classical concept of joint family system, joint family consist of extended family which includes aged parents, sons, unmarried, divorced or separated daughters, widows etc..There are two main schools, the ‘Mitakshara’ school and the ‘Dayabhaga’. According to the Mitakshara system, within the joint family there exists a smaller and limited unit called ‘coparcenary’, which acquires an interest in the joint family property by virtue of birth and is the property holding group. Coparceners are comprised of all and exclusively male members who are within four degrees of ascension or descension. No woman could be a coparcener, the property is owned by the coparceners and management of the property in entrusted in the hands of ‘karta’. The property devolves by survivorship amongst the coparceners, other members of the family have right of residence and maintenance and they can have limited succession rights. However, this right is limited and not comparable to those of the coparceners. In dayabhaga school,there is no coparcenary system and inheritance is by succession and not by survivorship, however women’s right to succession is still limited and much inferior to the male members.

The legislature has tried to improve and better the position of women through a series of ameliorating legislations, however most of this Acts have been within the confine of the larger framework of the Mitakshara coparcenary and preference for male attitude.  Some of this Acts are mentioned below:

Women’s estates and widow remarriage Act, 1856

The Act gives limited estates to widows, the widows are given the right to step into the shoes of her deceased husband and represent her estate, and she even has a right to demand partition under this Act. However this right is not an absolute right, it vests on her only during her lifetime after which it passes to the heirs of the husband. The widow has only right to enjoy the property, not dispose of it. She can only alienate the property on special conditions like legal necessity, benefit of the estate and for religious purposes of her deceased husband. It can be said that this right has been granted as an extension of maintenance right of widow. The estate is vested on her in order to meet her maintenance need and not as recognition of ownership right in the property as widow of her deceased husband. Again, this right is subject to the condition that the widow remains chaste and unmarried. Section 2 of the Act provides the rights and interest she gets out of her husband’s estates shall cease upon her remarriage.

Hindu law of Inheritance (Amendment) Act, 1929

It laid down preference for certain cognates, son’s daughter, daughter’s daughter, sister and sister’s sons were held entitled to succeed after paternal grandfather and before paternal uncle.

Hindu women’s right to property Act, 1937

This Act was passed as a result of the pressure to reform the law relating to women’s right to property. Many women organization had sprung up working for emancipation. The Act was passed as a kind of compromise to the demands and it gives recognition of women’s right to some extent. However the right granted was by no means adequate. It recognizes the right to property of two more widows in addition to the deceased’s widow being widow of the predeceased son and widow of the predeceased son of a predeceased son as heirs of the Hindu male intestate. However, again this right is not an absolute right, it merely vests a limited right and vests during their lifetime after which it reverts back to the reversioners.

Hindu Succession Act, 1956  

Prior to passing the Hindu Succession Act, women’s right to hold property was recognized for only limited purpose. The purpose of this right was rather merely recognition of the maintenance right than ownership rights. Even when certain women were given right to inheritance, the property devolves only as life estate and does not pass to them on absolute basis. They do not have the power to alienate the property or make a bequest of it as its owner; they merely have the right to enjoy the property while they are alive, thus the properties were transferred to them for their maintenance. Only with regard to certain property women could actually exercise ownership rights. Such property which she holds absolutely, with power to both enjoy and alienate has been termed “stridhan”. Such property comprised of gifts given to a women by her husband or her husband’s relations, Gifts or bequest of property given to a maiden or widow by non-relations, however such bequest excludes married women as in that case the property would be under the control of the husband. Again property acquired by a maiden or widow through her exertion would be her stridhan but for married women some schools like Mithila and Bengal school, such property does not constitute her stridhan. Ironically, law does not consider women capable of owning property when she is quite capable of earning it. Further, payment made in lieu of maintenance, gift made by her husband or parents or other relations during marriage constitutes her stridhan.

However  such gifts and items that constitute stridhan have meager economic value, mostly they are personal items like clothes and jewellery,  very rarely they can be immoveable property, immoveable property if any, held by women were held in the nature of women’s estate and not as absolute estate. Further, married women were discriminated and deprived against the maiden or widowed women, she has yet less right to own property while her husband is alive. Perhaps the anomaly was justified on the ground that married women were under the protection and guardianship of her husband and hence any of her property which would be of some consideration should be likewise under his guardianship. However, it is one thing to cast a duty upon the husband to maintain and protect his wife and quite another to deprive the wife of her rights and bestow it upon the husband.

The Act has brought about profound changes; largely diluting the concept of Mitakshara coparcenery while at the same time giving better recognition to women’s right to own property than till now was given.

Section 14of the Act abolished women’s estates and converted it into full estates. It provides that any property held by women at the commencement of the Act as women’s estates shall be converted into full estate excepting only those property which has been acquired by way of gift or will or under any decree of award prescribing such limited estate. So, this blanket provision converted to full estate all the estate not covered by the exception under clause 2 of the Act. The section had the effect of converting all the properties inherited by women from their husbands, parents and other relatives including immoveable property into their absolute estate.

The Act distinguishes two kinds of properties and two modes of devolution of property for the purpose of inheritance, ancestral property and separate property. Ancestral property devolves by survivorship whereas separate property devolves by succession.

Prior to amendment in 2005, the Act made daughters or certain lineal descendants of predeceased daughters; widow and mother class 1 heir, along with the sons or the lineal descendants of predeceased sons, eligible to inherit from the deceased’s separate property which included his undivided shares in the joint family property. However unlike sons, daughters had no right to a share from joint family property, they only had right to their father’s share whereas sons would get a share from joint family property in their own right as coparcener as well as succeed as heir from the father’s separate property.

Agricultural property

Further, section 4 [2]1excluded agricultural property, tenancy rights from the purview of the Act, leaving it to the states concerned to enact laws regarding the same since agricultural property falls under state list under article 246(2). The section regulates devolution of tenancy rights, it is the right to cultivate the agricultural land and the devolution of this right is subject to the state laws. This provision adds greatly to put women in disadvantageous position as India being mainly of agrarian economy, agricultural property forms the bulk of the majority Indian and the Act has practically excluded women from having important rights in this property. This is because of the reason that all the main states where agricultural holdings are main property have enacted laws that practically exclude women from inheriting any ownership rights in them. ( it is the customary practice to keep the properties, ancestral immovable properties in the hands of the male lineal descendants, this is the case especially in places where immoveable properties comprise of large agricultural lands tended together by joint families, e.g Punjab, Haryana, Balwant Kaur’s case)(parsis’s law intestate succession act too excludes application to agricultural properties)

Strong preference of male or agnatic succession is clearly reflected from the tenurial laws of Himachal Pradesh, Haryana, Jammu & Kashmir, Punjab, Uttar Pradesh and Delhi. In all these states, tenancy devolves on male lineal descendants on the male lines; women can only inherit in the absence of male heirs. In some states like Haryana, Punjab, Himachal Pradesh and Jammu & Kashmir, daughters and sisters are totally excluded as heirs while in other states where they are not totally excluded, their chance to succession come so low in the order of heirs that it practically amounts to exclusion. Moreover even if they did inherit the property, they only inherit it life estate after which it will go to the heirs of the last male owners. In some states, like Rajasthan and Madhya Pradesh, personal law applies to every community with respect to agricultural property also. The state of Andhra Pradesh has stated that Hindu Succession Act will apply to the tenants. Yet in states like Bihar and Orissa, the tenancy Acts specify that occupancy rights will devolve in the same manner as other immoveable property subject to the customs to the contrary, and these states mostly have male preferential customary laws.

The preferential treatment of male is further reinforced by land reforms enactments relating to fixation of ceilings. Generally in most states, a ceiling is fixed per family unit. Gender inequalities are manifested in many aspects starting with the definition of the ‘family’, which is defined as constituting of the cultivator, his spouse, minor sons and unmarried daughters. Adult sons are given special consideration and allowed to have different unit of their own but not adult daughters except for in only some states like Jammu & Kashmir, West Bengal, Karnataka, Tamil Nadu and Kerala. Further, ceiling is allotted to the husband, a wife cannot have an independent ceiling of her own. In states like Uttar Pradesh, the tenure holder is allowed more land on account of having adult sons rather than having adult sons have their separate holdings, the mode of distributing ceilings might differ, but the fact remains that the chances of female having any holding on her own right seems to be much less than the male counterparts. The ceilings laws have been challenged in the court as being discriminatory many a times and consequently, the parliament has promptly amended the constitution to put land reform legislation beyond such challenges. Under article 31(b) inserted by the 1st amendment , none of the Acts mentioned in ninth schedule could be challenged on the ground that they infringed fundamental rights, and land reform legislation were all put in the ninth schedule.

In Ambika Prasad Mishra v. State of Uttar Pradesh and Ors2, the court not only reiterated the general presumption of sacrifice of women’s rights at the altar of Community welfare and family consolidation, but also held that agrarian legislation, must be judged , not meticulously for every individual injury but by the larger standards of abolition of fundamental inequalities, frustration of basic social fairness and shocking unconscionability. The Uttar Pradesh Zamindar Abolition and Land Reforms Act, 1950 was challenged on the ground that it discriminated against daughters. Under the Act presence of son enable the father to retain more land while presence of daughters do not and hence daughters are left unprovided for, The act also discriminate against married women in land ceiling as only the husband is regarded as tenure holder even when they are the owner. Justice Krishna Iyer rejecting any pleas held that no submission can be accepted using sex discrimination as ground for what is socially desirable as the entire holding goes to the father. He further justified exclusion of women as tenure holders where their husband is also tenure holder stating that the measure are all ‘legislative device for simplifying procedural dealings’ and that “ when all is said and done, married women in our villages do need their husbands services and speak through them in public spaces”. In the face of such attitude, presumably from one of the Hon’ble Justice who has been considered as one of the pioneer of women’s rights, it’s not surprising gender discriminatory law continues to be enacted, protected and flourished in one way or the other throughout.

The discriminatory laws do not exist only in Hindu Succession Act; it cuts across various religions and cultures. Some tribal laws are even harsher against women than the Act, In Madhu Kishawar v. Union of India3, writ petitions were filed on behalf of the tribal women of Ho tribe and Oraon Christian tribal of Bihar state challenging the prevailing customary rules which exclude women from inheritance of land and property as well as challenged the provisions of sections 7, 8, 76 of Chhota Nagpur Tenancy Act as being violative of Articles 14, 15 and 21 of the constitution. The contention of the petitioners was that the tribal women toil, share with men equally the daily sweat, troubles and tribulations in agricultural operations and family management. Their discrimination based on the customary law of inheritance is unconstitutional, unjust, unfair and illegal. Relying on Atma Prakash v. State of Haryana, which while testing the validity of Section 15 of the Punjab Pre-emption Act, 1930, for the aforesaid reasons, the apex Court held that the right of pre-emption based on consanguinity is a relic of the feudal past. It is totally inconsistent with the constitutional scheme. It is inconsistent with modern ideas. The reasons which justified its recognition, quarter of a century ago, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession, are today irrelevant. Classification on the basis of unity and integrity of either the village community or the family or on the basis of the agnatic theory of succession cannot be upheld. Due to march of history the tribal loyalties have disappeared and family ties have been weakened or broken and the traditional rural family oriented society is permissible. Accordingly, Section 15(1), Clauses (1) to (3), violates fundamental rights and were declared ultra vires.

The court in this case while holding the customary rules as being discriminatory held it not binding on the tribal community on the basis of the discrimination. It also held the general principles of Hindu Succession Act and Indian succession Act applicable to the said tribes not though in terms.

( another source of inequality lies at the time of assessment of ceiling surplus land, the holding of the family land are aggregated to assess ceiling, usually if any forfeiture is required, it is the husband who is consulted and the wife’s share which is usually forfeited. Notice is also usually given to husband as interested person for such forfeiture. The need of the hour is uniformity in ceiling and land laws, we also need codification of tribal laws, we need egalitarian laws in agricultural rights as much as in any other area, equal property rights to women would be meaningless if agricultural rights are excluded)

Hindu Succession (Amendment) 2005

Although Hindu Succession Act, 1956 had brought fundamental changes in the Hindu coparcenery structure, it still retained remnants of the Mitakshara features whereby sons were given birthright in the joint family property and not daughters. The retention of these features were opposed from many circles as being discriminatory and  violation of fundamental right to equality guaranteed under section 14 of the constitution, they demanded abolition of the Mitakshara system and place man and woman on equal footing. However even though the central legislature hesitated,  amendments were carried out at the states level in the state of Andhra Pradesh, Tamil Nadu, Kerala, Karnataka and Maharashtra which practically abolished the Mitakshara by making daughters coparcener. The efforts towards securing almost equal rights to women taken by these states were highly commendable. The legislature of Kerala following the recommendations of Rau Committee on Hindu Law, has totally abolished the cornerstone of Mitakshara, right of birth system, effectively abolishing Mitakshara coparcenery.  However, even though the discrimination in law has been removed, since the preference for male attitude still exist in the minds of people, the fear of defeating the rights of the female through testamentary disposition exist, especially as due to the removal of right of birth, everybody is free to bequeath his or her property without any vested interest accruing in favor of the family members. State of Andhra Pradesh has on the other hand endeavored to put the daughter at the same pedestal with sons without destroying the Mitakshara joint family system by making daughters who were unmarried at the time when the Act was passed, coparceners along with sons with same rights and disabilities.  The distinction between married and unmarried daughter has been challenged as being discriminatory. In the recent case, Savita Samvedi vs. Union of India4, the Supreme Court struck down a circular of the railway board which stated that when a “ railway servant who is an allottee of Railway accommodation retires from service, his/her son, unmarried daughter, wife , husband or father as the case may be allotted railway accommodation on out turn basis”. Under the circular, a retiring employee can nominate his married daughter only if he has no son. The Supreme Court held that the circular in fettering the choice to nominate married daughter as violative of article 14 and hence liable to be struck down.

There was a dire necessity to bring about necessary modification at the central level too, accordingly, the central legislature made amendment in the Act vide amending Act of 2005. The new amendment largely abolished the Mitakshara system of survivorship and made the Act much more egalitarian.  The amendment has made three significant changes in the Act. Firstly it has made daughters, married and unmarried alike coparceners along with sons with all consequent liabilities and rights alike (section 6). Secondly, it has deleted section 4(2) of the Act, making the Act applicable to agricultural land as well overriding the states Acts which provides to the contrary. Thirdly, it deleted section 23 which disentitles female heir to ask for partition in respect to dwelling house wholly occupied by a joint family until the male heirs chose to divide their respective shares therein.

Although section 4(2) was deleted from the Act making it applicable to the agricultural property as well, since agricultural property falls under state list under article 246 of the constitution, until and unless necessary amendment is brought about in the constitution, the deletion will not have any effect. Hence agricultural property will continue to be governed by state laws.

In the legislature’s effort to bring about gender parity within the confines of the joint family system, the amendment has created some confusion. Since daughters including married daughters are also now coparceners of the family, according to the classical definition of the joint family which includes parents, sons their wives and unmarried daughters, daughters would be now coparceners of her natal family as well as member of her husband’s joint family. This confusion notwithstanding, even after the phenomenal step legislature has taken to bring gender parity and its seemingly egalitarian attitude, it comes as great surprise that the Hindu Succession Act is still not totally a gender egalitarian Act, it still retains the age old male preferential treatment provisions.

Provisions of different schemes of succession for male and female intestate

The Act has not amended the two different schemes of succession for male and female. The two schemes for males and females are given under sections 8-13 and 15 respectively.  Section 8 tilled ‘General rules of succession in case of males’ lays down the  property will first devolved on class I heirs, in the absence of any heirs in class I heirs, upon class II heirs as specified in the schedule,  thirdly upon the agnates and lastly upon the cognates.

As opposed to the general  scheme of succession, the devolution of property for Hindu female intestate has been made rather complex. Firstly, scheme of devolution yet again differs with the source of property. Secondly, depending on the source, a woman’s property will either devolve upon her husband’s heirs or her father’s heirs if she does not have any children or children of her children.

It is certainly strange that the legislature felt the need to devise different schemes depending upon the source when the source is immaterial in case of male intestate. Also, the legislature seems to be entirely oblivious to the concern of establishing independent heirs of female rather than devolving her property upon the heirs of her husband or father. The intent of the legislature seems to be the concern to conserve the property and revert it to its source. However, if it was the intent of the legislature, it does not meet its purpose, it only mentions property inherited from her parents which will go to the heirs of her father. For property which has been gifted or given on bequest or through any other means would be devolved as per section 15(1). It was held in Balasaheb v. Jaimala((AIR 1978 Bom 44))that when a female inherits property from her brother, it will be governed under section 15(1). This seems to be rather an attempt to control her property after her death, suspiciously a trace of women’s estate. It totally defeats the purpose of succession if women die issueless. The purpose of the succession law is to, in absence of any express or specific instructions, to devolve the property in the way the intestate normally would have done, i.e., to make provisions for people borne out of love and affection.  Normally, a woman would therefore prefer her blood relations to her husband’s relations. In the scheme of succession contemplated in the Act, even remote heirs of the husband would take preference over her mother and father, who might be depended on her. Also, the Act quite goes against the reciprocity of inheritance, the entire heirs of her husband howsoever remote have been her heirs even though she is not their heirs.

The present scheme of succession can result in extremely unreasonable and unfair kind of situation which revolts against every sense of justice and equity. In a recent judgment, the apex court has followed the law to its letter and given preference to the rights of the in-laws over her natal family in succeeding to her hard earned property even when her in-laws had thrown her out after her husband died and it was her natal family who had supported her to stand on her own feet.  In Om Prakash v. Radha Charan5, fifteen years old Narayani Devi was kicked out of her matrimonial home by her in-laws branding her as a bad omen when her husband died of snake bite soon after her marriage. She returned to her natal home where she was supported by her parents and sibling to take education so that she could be independent. Later, she began to teach in a school and accumulated considerable wealth. All this while, neither her in-laws tried to inquire about her whereabouts nor did she contact them for anything. All ties were snapped for all purposes. She died intestate leaving behind substantial property, immoveable as well as moveable. After her death, her mother sought the grant of succession certificate. However her family was for in a rude shock for her in-laws who had thrown the deceased out of the house and branded her bad omen had also applied for succession certificate to the deceased’s property as her heirs. The matter was contested and ironically the Supreme Court negative the claim of the deceased’s mother and brother and upheld the claim of her in-laws instead on the ground that as per the Act, it is the heirs of the husband’s who has legal right to inherit the property in absence of her children or children of children and not her parents or brother and sisters.  The fact that the in-laws were cruel to her and had actually thrown her out does not change the position.

Such a judgment certainly shocks the conscience of any fair and just minded people, but such circumstances are not rare. For how many in-laws keep an issueless widow in their house for any length of time. Such widow is usually either thrown out, or compelled to go or they go on her own due to cold and indifferent treatment in the in-laws house. In our society, we are more accustomed to finding issueless widowed daughter than widowed daughter-in-law in a household. So, whenever such circumstances happen, are the in-laws to be rewarded with hard earned property of the poor woman whom they have ill treated after she is dead. When, should the woman be alive, the notion of her in-laws inheriting to her property instated of her parents and siblings who had supported her, would clearly have been abhorrent to her feelings. It is sad that the court considered itself bound by the statutes and followed it when it clearly was unfair and unjust.

However, there are cases in which the court had not considered itself bound by the statutes and exercising its inherent power given judgment as it thinks is just and equitable. In Krishnamma v. Subramanyam Reddy6,  upon the death of the husband, the wife who had deserted him earlier and gone to live with her paramour with whom she had children, claimed inheritance. As she still remained the wife of the intestate, there was nothing to debar her from claiming inheritance. Here the court held the wife did not deserve to inherit the property and thus not apply the rules of inheritance.

Rules of equity and good conscience have also been applied in other cases, In Granny Kaur vs. State of NCT of Delhi7, a family of four, husband, wife and two children, were killed in the Sikh riots in 1984, only two relatives survived, the mother of the wife and the father of the husband. Later the Government announced ex-gratia payment of Rs. 20,000/- for the deceased family. The whole of the amount was paid to the father of the husband by applying the rules of inheritance under the Hindu law which governed the parties. Much later, ex-gratia payment for all those who died in the riot was increased to Rs. 3.5 lakhs per dead. For the family, it came to around 14 lakhs. The mother of the wife contended half of this amount should be given to her as she has also lost her daughter and two grandchildren. The court taking into consideration that on emotional ground and nearness of relation , she was on equal terms with the father of the husband and hence awarded half-half to both of them. So, here in this case the court appointed the mother of married daughter and maternal grandmother of the children as next of kin.

It is sad that the court did not think it fit to apply the rules of justice and equity in the case of Narayani when such application would have been most fitting and desirable. It is true courts are there to apply the law and decide according to the provisions of law, however most importantly courts are there to mete out justice and certainly the apex court has enough constitutional power so as not to be fettered and constrained in applying principles of justice and equity.

Different provisions for succession to female and male intestate has been challenged as being violative of article 14 and 15 of the constitution and as being totally arbitrary and irrational in Sonabai Yeshwant Jadhav vs. Bala Govinda Yadav8, In this case, upon the death of the husband, the wife had inherited his property and when she died, her husband’s male cousin’s son laid claim to her property as her heirs. The court dismissed the suit while upholding the constitutional validity of the impugned provisions. The court reasoned that laws are made to solve specific problems and achieve definitive objectives and hence absolute equality or total uniformity is impossible. It held that article 14 allows classification and different treatment based on the classification on the basis of the personal law would not result in discrimination. The court further reasoned that marriage is based on unity between husband and wife. It is in recognition of this unity that succession opens to the wife’s property, the heirs of the husband when no other immediate heirs are available are permitted to succeed.  The court further stated that conferment of full ownership of property on a female Hindu is not intended to affect the position she held as “wife” in the family. The court also justified the scheme on the basis that although it mentioned “heirs of husband” it was being left for family members and classification is not based upon sex preference.

It is rather surprising that the court very conveniently overlooked the fact on construing unity between husband and wife when wife’s devolution of property is concerned so as to justify wife’s leaving property to her husband’s heir quite natural, the same unity is not envisaged while inheriting to the property of her husband’s relatives. A female is an heir to very few of her husband’s relative, only to father in law and brother in law, which comes at very low level in the line of succession.

The decision almost defeats the purpose of succession. One purpose of having succession law is primarily to provide for those who have been dependant on the intestate. For in absence of the children or children of her own, a female intestate property would devolve on her husband’s heirs, howsoever remote they might be before it comes to her own mother and father and siblings. In the modern time, as many women are financially independent, they are sharing their responsibilities in looking after their parents and siblings if they are in need of help. Women are no longer always the one who needs maintenance; they are now also the one who are providing maintenance in many households. Married daughters have duty as well as right to maintain her parents, and on their death, her property should go to them before it goes to any remote relatives. A marriage does not snap all ties a woman has with her natal family formed out of blood ties and natural love and affection. It is unnatural for law to presume that just because a woman is married she owes more duty of care to her husband’s relative, howsoever remote they are, than to her own immediate family.

(Especially after 2005 amendment, where she is given full right as the son, she should be allowed to perform her duties as well, it is unfair that she should succeed from her natal home and her property should devolve on her in laws)

Such law would only reinforce the male child preference prevalent in the society; such laws would make parents favor their son more, who ‘could’ look after them in their old age, and whom law has given the right and duty to look after them. It is a vicious cycle of male preference which goes between the society and law. The law favoring male in terms of all the rights, property rights in this case and the society reciprocating by favoring male for the rights it possessed and vice versa.

Gender discrimination in succession laws cuts across religions and communities; it is not the plight of only Hindu women. Discrimination exist in all personal laws, it is only in forms and degrees that it differs.

The Parsis were governed under two different sets of laws, Parsis in Moffusil governed by customary laws and those in presidency areas governed by rules of British common law. The law was however codified under a uniform law, Parsis Intestate Succession Act, 1865. Under this law, the widow of the intestate was entitled to receive half of what the share of the son and that of the daughter’s share was one fourth of the share of the son. This highly discriminatory law was later repealed and the Act was consolidated in Indian succession Act, 1925 which provided a separate chapter for Parsis Intestate Succession under chapter III. Thankfully, the Act was later amended in 1939 whereby the provisions of the daughter’s share were increased to one half of that of the son’s. Luckily the discrimination was removed by the amending act of 1991 which made the shares of the widow/widower and sons/ daughters equal.

The Indian succession Act is supposed to be one of the most egalitarian legislation. However even though most of its provisions are gender free, in case of the intestate not leaving any lineal descendants, under section 42 of the Act, the property after deducting the fixed share of the spouse if she/he is living will go to the father. Under this Act, the father is kept on a higher pedestal to succeed to his sons/daughters property as against the mother. The discrimination between the mother and father is simply unreasonable; they could simply have been put on the same degree entitled to inherit simultaneously. Moreover, many a Christians are still governed by highly discriminatory customary law and in some cases tribal customary laws. In Kurian Augusty’s9the Travancore-cochin High court had held that the Christians in former Travancore and cochin states are governed Christian Succession Act and not by Indian Succession Act. This decision was fortunate overruled by recent decision of Supreme Court in Mary Roy vs. State of Kerala10, which held Christians of former Travancore-Cochin are governed by Indian succession Act by virtue of Part B States (Laws), Act, 1951.

As far as Muslim’s law of succession is concerned, the discriminatory provisions have not been softened by any ameliorating amendments. Under Muslim law, a share of widow in presence of child is one eight and in their absence one fourth and if a man leaves more than one widows they together take the share. In case of female intestate, husband takes one fourth in presence of children and half in absence of them.  The share of the daughter is half the share of those of sons.

Also, apart from particular kinds of discrimination manifested in some form or the other, there are some general preferences for male relations like preference of half blood relations over uterine blood. This preference exists in almost all personal laws except for the Indian succession Act .The preference for agnatic heirs over cognates is another example of such discrimination.

Conclusions

The issue of ‘gender justice’ has been gaining ground in many an area for some centuries. Though the traditional view of gender injustice has been given quite a quietus and treated as an event of bygone days, yet the malady still remains, sometimes pouncing with ungenerous monstrosity giving a free play to the inferior endowments of nature in  man thereby making the whole concept a ridicule anaesthetizing  the entire edifice built in the last few decades.
It is realized that despite the constitutional safeguard and the active judicial support towards the cause of women, changes in social attitudes and institutions cannot be brought about very rapidly. However, it is  necessary to accelerate this process of change by deliberate and  planned efforts so that the pernicious social evil of gender inequality is buried deep in its grave. Laws written in black and white are not enough to combat the  evil. The role of Courts and judges assume greater importance and it is expected that the Courts would deal with cases relating to woman in a more realistic manner. A socially sensitive judge is indeed a better statutory armour in cases of crimes against women than the long clauses of penal provisions, containing complex exceptions  and          provisos.
Awakening of the collective consciousness is the need of the day. A problem as multifaceted as women’s self-actualization is too important to be left to a single section of the society. This responsibility has to be shared by the State, community organizations, legislators who frame the laws and the judiciary, which interprets the Constitution and other laws in order to give a fillip to the legal reform in the field of gender justice and to usher in the new dawn of freedom, dignity and opportunity for both the sexes equally.

There is still much left to be done, we should combine the egalitarian provisions of all the laws and enact an egalitarian law which takes special consideration of the long history of the unjust discrimination which women have faced with regard to ownership of property. Further,  it is also true that legal provisions , however beneficial they may be, are not enough to secure equal rights for women , until and unless the society co-operates and complements these laws with an egalitarian attitude towards women.  Many people look towards the changes in legislation making, giving equal rights to women in joint family property, with a hostile attitude. They would view any daughter ,who ask for partition or demands shares in the property as mercenary. Most women do not ask for their rightful shares in their natal homes and in the rare cases when they do, the matter invariably comes to court. Many have tried evading the provisions of law by making bequests, cutting off the daughters or making them execute relinquish deeds in favor of the brothers and sons. Equality cannot be achieved until and unless the mindset of society changes and acknowledges the rights of women to own property. We all should realize that women are not just an ‘object’ or ‘commodity’ to be maintained and kept by the family for certain purposes. Women also have the right to be independent; she has the right to own house, landed property and any other property in her own name to do as she please with it. The present set up of the society is patriarchal, it favors man and all the institutions like family, marriage likewise are built with its foundation based upon this patriarchal structure. And naturally if we want to bring about changes like recognizing this important right of property ownership of women, it will of course lead to changes in the statuts quo, but the question is should we continue to permeate the inequality in order to preserve this status quo so as not to disturb the equilibrium, an equilibrium based on inequality? Should the interest of women be always sacrificed for the convenience of society? Or should we be more bold and open minded and venture to build up a structure based on equality of sex and justice to women?

  1. 4. Over-riding effect of Act.- (1) Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. (2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.

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  2. 1980 SCC 719 []
  3. 1996(5) SCC 125 []
  4. 1996 (2) SCC 380 []
  5. 2009 (7) SCALE 51 []
  6. AIR 2008 (NOC) 482 (AP). []
  7. AIR 2007 Del 273 []
  8. AIR 1982 Bom 156 []
  9. AIR 1957 T.C.I []
  10. AIR 1986 SC 1011 []

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