Gender equality: a long way to go
in India.
Section 6 of the Hindu Succession
Act, 1956 as amended by the Amendment Act of 2005:
The United Nation's Report in 1980 presented that
- "Women constitute half the world's population, perform nearly
two-thirds of its hours and receive one tenth of the world's income and less
than one hundredth of the property." Well! The position qua Hindu woman is not much different.
Even though a woman in Hindu family enjoyed a respectable status in terms of
family upbringing, she was a neglected person with reference to ownership of
property. Much like those of women of any other country, the property rights of
Hindu women have evolved out of a continuing struggle between the people
advocating the status quo and the
persons advocating the progressive amendments. There is no single body of
property rights of Hindu women. Their property rights get determined depending
on which religion and religious school she follows, whether she is married or
unmarried, which part of the country she comes from, whether she is tribal or
non-tribal, etc. etc. Since time
immemorial the framing of all laws have been exclusively for the benefit of
man, and woman has been treated as subservient, and dependent on male support.
Several enactments were made in the pre-independence India governing Hindu
woman’s right to property. But the position of woman did not improve.
Ironically, despite the discriminatory and arbitrary principles governing the
property rights of Hindu women, they are immune from Constitutional protection.
By and large, with a few exception Indian Courts have refused to test the
personal laws on the touchstone of Constitution to strike down those that are
clearly unconstitutional and have left it to the wisdom of the legislature to
frame the uniform civil code as per the mandate of a Directive Principle in
Article 44 of the Constitution. However, after the enactment of the Hindu
Succession Act, 1956 and its subsequent amendment by the Hindu Succession
(Amendment) Act, 2005, the position of a Hindu woman with reference to her
right to property has substantially improved.
Prior to the Hindu Succession Act,
1956, shastric and customary laws
that varied from region to region governed Hindus and sometimes it varied in
the same region on a caste basis resulting in diversity in the law.
Consequently in matters of succession also, there were different schools, like
Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and
Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts
of India with slight variations The multiplicity of succession laws in India,
diverse in their nature, owing to their varied origin made the property laws even
mere complex. Earlier, woman in a joint Hindu family, consisting both of man
and woman, had a right to sustenance, but the control and ownership of property
did not vest in her. In a patrilineal system, like the Mitakshara school of
Hindu law, a woman, was not given a birth right in the family property like a
son.
The earliest legislation bringing
females into the scheme of inheritance is the Hindu Law of Inheritance Act,
1929. This Act, conferred inheritance rights on three female heirs, i.e., son's
daughter, daughter's daughter and sister (thereby creating a limited
restriction on the rule of survivorship). Another landmark legislation
conferring ownership rights on woman was the Hindu Women's Right to Property
Act (XVIII of) 1937. This Act brought about revolutionary changes in the Hindu
Law of all schools, and brought changes not only in the law of coparcenery but
also in the law of partition, alienation of property, inheritance and adoption.
[Mayne's, Treatise on Hindu Law & Usage, (1996 14th Edition, edited by
Alladi Kuppuswami p. 1065.] The Act of 1937 enabled the widow to succeed along
with the son and to take a share equal to that of the son. But, the widow did
not become a coparcener even though she possessed a right akin to a coparcenary
interest in the property and was a member of the joint family. The widow was
entitled only to a limited estate in the property of the deceased with a right
to claim partition [M. Indira Devi, "Woman's Assertion of Legal Rights to
Ownership of property" in Women & Law Contemporary Problems, (1994
edt. by L. Sarkar & B. Sivaramayya) p. 174; also section 3(3) of Hindu
Women's Right to Property Act, 1937]. A daughter had virtually no inheritance
rights. Despite these enactments having brought important changes in the law of
succession by conferring new rights of succession on certain females, these
were still found to be incoherent and defective in many respects and gave rise
to a number of anomalies and left untouched the basic features of
discrimination against women. These enactments now stand repealed.
The framers of the Indian
Constitution took note of the adverse and discriminatory position of women in
society and took special care to ensure that the State took positive steps to
give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of
India, thus not only inhibit discrimination against women but in appropriate
circumstances provide a free hand to the State to provide protective
discrimination in favour of women. These provisions are part of the Fundamental
Rights guaranteed by the Constitution. Part IV of the Constitution contains the
Directive Principles which are no less fundamental in the governance of the
State and inter alia also provide
that the State shall endeavor to ensure equality between man and woman.
Notwithstanding these constitutional mandates/directives given more than fifty
years ago, a woman is still neglected in her own natal family as well as in the
family she marries into because of blatant disregard and unjustified violation
of these provisions by some of the personal laws. Pandit Jawaharlal Nehru, the
then Prime Minister of India expressed his unequivocal commitment to carry out
reforms to remove the disparities and disabilities suffered by Hindu women.
As a consequence, despite the
resistance of the orthodox section of the Hindus, the Hindu Succession Act,
1956 was enacted and came into force on 17th June, 1956. It applies to all the
Hindus including Buddhists, Jains and Sikhs. It lays down a uniform and
comprehensive system of inheritance and applies to those governed both by the
Mitakshara and the Dayabahaga Schools and also to those in South India governed
by the Murumakkattayam, Aliyasantana, Nambudri and other systems of Hindu Law.
For almost half a century since the
passing of the Hindu Succession Act, 1956, there has been widespread belief
that under Hindu personal law daughters are equal to sons. This belief was
based on Section 10 of the Act dealing with the distribution of property of a Hindu who has died without making a will, referred to
as ‘intestate’ in law. The provision unequivocally declares that property is to
be distributed equally among Class I heirs, as specified in the schedule. The
schedule clearly lays down daughters, mothers and widows as Class I heirs
entitled to a share equal to that of sons. This, though seemingly a huge step
in favour of gender justice, was in fact more a sleight of hand. The mischief
lay in customary Hindu law and the concept of Mitakshara coparcenary property.
A Hindu joint family consists of a common ancestor and all his lineal male
descendants, together with wives or widows and unmarried daughters. The
existence of a common ancestor, necessary to bring a joint Hindu family into
existence, continues even after the death of the ancestor. Upper links are
removed and lower ones are added; the joint family can continue indefinitely.
Except in the case of adoption, no outsiders are permitted and membership to
the joint family is by birth or marriage to a male member. A Hindu joint family
is a unit and is represented by the Karta or Head. The Hindu Succession
Act, 1956 retained the coparcenery. In fact, Section 6 specifically declares
that, on death, the interest of a male Hindu in Mitakshara coparcenery property
shall devolve by survivorship to other members of the coparcenery and not by
succession under the Act. However, it laid down that the separate share of the
deceased, computed through the device of a deemed partition just before his
death, would devolve according to the Succession Act. The Act did not clearly
spell out the implications of exclusion from membership to the coparcenery in
respect of inheritance of property. Thus, if a widowed Hindu male died leaving
a son and a daughter, then, according to the explanation in Section 6 of the
Act, there will be deemed to be a partition just before the death of the
person. In this deemed or ‘notional’ partition, the father and son share
equally and each gets half the property. The father's half will be shared
equally by his son and daughter as Class I heirs. In effect, therefore, the
daughter gets one-fourth of the property, while the son gets his own half from
the deemed partition as a coparcener and an
additional half from the share of his father. Together that would be
three-fourths of the property. It is this inequity between son and daughter
that has now been removed by the amendment.
In 1975 a committee on
the status of women was constituted by the Government of India, to evaluate the
current legal provisions in regards to women, so that that a woman is not left
completely destitute. The said Committee made various recommendations
concerning the rights of Hindu, Muslim, Christian women. However, in view of
the limited scope of this article, we restrict ourselves to the recommendation
made with reference to the Hindu women. In regards to succession to property
among Hindus, the Committee made, inter
alia, the following recommendations:
i)
The right by birth should be abolished and the
Mitakshara Coparcenery should be converted into Dayabhaga (the retention of
Mitakshara Coparcenery perpetuates inequality between sons and daughters as
only males can be coparceners, and inheritance is only through the male line).
ii)
The exception provided in Section 4(2) of the Hindu
Succession Act relating to devolution of tenancies should be abolished (this
provision, as it stands now excludes devolution of tenancy rights under various
State Laws from the scope of the Act).
iii)
The discrimination between married and unmarried
daughters regarding right of inheritance of dwelling houses caused under
Section 23 of the Hindu Succession Act should be removed.
iv)
The right of testation should be limited under the
Hindu Succession Act, such that female heirs are not deprived of their
inheritance rights.
v)
In matrimonial property, legal recognition should be
given to the economic value of the contribution made by
the wife through household work for purposes of determining ownership of
matrimonial property, instead of continuing the archaic test of actual
financial contribution;
vi)
On divorce or separation, the wife should be entitled to at least
one-third of the assets acquired at the time of and during the marriage.
The National Commission for Women
also recommended certain amendments in laws relating to women and property. The
recommendation in brief were as follows:
i)
Equal distribution should be made of not only separate or self
acquired properties of the diseased male, but also of undivided interests in
coparcenary property;
ii)
Daughter of a coparcener in a Hindu joint family governed by
Mitakshara Law to be coparcener by birth in her own
right in the same manner as her son;
iii)
Daughter should have right of claim by survivorship
and to have same liabilities and disabilities as a son;
iv)
Coparcenery property to be divided and allotted in
equal share.
A remarkable dent in
this situation was made by the Hindu Succession [Andhra Pradesh] Amendment Act,
1985, which initiated a revolutionary development. This law stated that, in any
circumstances, the rights of the daughter are equal to that of the son. This
new law found the Mitakshara system in violation of the fundamental right of
equality bestowed upon women in Indian Constitution. Following Andhra Pradesh,
the States of Tamil Nadu, Maharashtra and Kerala subsequently also amended
their laws by including women as members of the coparcenaries.
Recognizing such
various anomalies, the Law Commission [174th Report of Law Commission of India
under the Chairmanship of Justice B. P. Jeevan Reddy, vide D.O. No.
6(3)(59)/99-LC(LS), dated 5th May, 2000] in pursuance of its terms of
reference, which, inter alia, oblige
and empower it to make recommendations for the removal of anomalies,
ambiguities and inequalities in the law, decided to undertake a study of
certain provisions regarding the property rights of Hindu women under the Hindu
Succession Act, 1956. The Law Commission was concerned with the discrimination
inherent in the Mitakshara Coparcenary u/s. 6 of the Hindu Succession Act, 1956
as it consists on only male members. The Commissions’ main aim was to end
gender discrimination that was apparent in the said section 6 of the HSA, 1956.
The Law Commission made a broad study of section 6 of the HSA, 1956 and the
Hindu Succession State (Amendment) Acts of Andhra Pradesh (1986), Tamil Nadu
(1989), Maharashtra (1994), Karnataka (1994) and the Kerala Joint Family System
(Abolition) Act, 1975. The said study resulted into the enactment of the Hindu
Succession (Amendment) Act, 2005.
The
Hindu Succession Act, 1956 was amended by the Hindu Succession (Amendment) Act,
2005 (‘the Amending Act’) which came into force from 9th September 2005. The
Amending Act substituted S. 6 of the Act. The provision of S. 6 of the Act is
quoted below:
6.
Devolution of interest in coparcenary property. —
(1) On and from the commencement
of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family
governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener
in her own right in the same manner as the son;
(b) have the same rights in the
coparcenary property as she would have had if she had been a son;
(c) be subject to the same
liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu
Mitakshara coparcener shall be deemed to include a reference to a daughter of a
coparcener:
Provided that nothing contained in
this sub-section shall affect or invalidate any disposition or alienation
including any partition or testamentary disposition of property which had taken
place before the 20th day of December, 2004.
(2) Any property to which a female
Hindu becomes entitled by virtue of sub-section (1) shall be held by her with
the incidents of coparcenary ownership and shall be regarded, notwithstanding
anything contained in this Act or any other law for the time being in force in,
as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the
commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the
property of a Joint Hindu family governed by the Mitakshara law, shall devolve
by testamentary or intestate succession, as the case may be, under this Act and
not by survivorship, and the coparcenary property shall be deemed 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 of partition, 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 of a pre-deceased daughter, as such child would
have got had he or 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 or a
pre-deceased daughter, as the case may be.
Explanation. —For the purposes of
this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed
to be the share in the property that would have been allotted to him if a
partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the
Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to
proceed against a son, grandson or great-grandson for the recovery of any debt
due from his father, grandfather or great-grandfather solely on the ground of
the pious obligation under the Hindu law, of such son, grandson or
great-grandson to discharge any such debt:
Provided that in the case of any
debt contracted before the commencement of the Hindu Succession (Amendment)
Act, 2005*, nothing contained in this sub-section shall affect—
(a) the right of any creditor to
proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect
of or in satisfaction of, any such debt, and any such right or alienation shall
be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession
(Amendment) Act, 2005 had not been enacted.
Explanation. —For the purposes of
clause (a), the expression “son”, “grandson” or “great-grandson” shall be
deemed to refer to the son, grandson or great-grandson, as the case may be, who
was born or adopted prior to the commencement of the Hindu Succession
(Amendment) Act, 2005*.
(5) Nothing contained in this
section shall apply to a partition, which has been effected before the 20th day
of December, 2004.
Explanation. —For the purposes of
this section “partition” means any partition made by execution of a deed of
partition duly registered under the Registration Act, 1908 (16 of 1908) or
partition effected by a decree of a court.]
The
statement of objects and reasons appended by the Legislature while moving this
amendment was as follows:
Section
6 of the Act deals with devolution of interest of a male Hindu in coparcenary
property and recognises the rule of devolution by survivorship among the
members of the coparcenary. The retention of the Mitakshara coparcenary
property without including the females in it means that the females cannot
inherit in ancestral property as their male counterparts do. The law by
excluding the daughter from participating in the coparcenary ownership not only
contributes to her discrimination on the ground of gender but also has led to
oppression and negation of her fundamental right of equality guaranteed by the
Constitution having regard to the need to render social justice to women, the
States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made
necessary changes in the law giving equal right to daughters in Hindu
Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala
Joint Hindu Family System (Abolition) Act, 1975.
It
is proposed 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.
Mayne’s
‘Hindu Law and Usage’ describes the scope of the Amending Act as under:
‘The
Hindu Succession (Amendment) Act, 2005 has substituted S. 6, w.e.f. 9-9-2005.
With effect from this date, the devolution of interest in the coparcenary
property shall be governed by this Section. In a Mitakshara joint Hindu family,
the daughter of a coparcener shall (a) by birth become a coparcener in her own
right in the same manner as the son; (b) have the same rights in the
coparcenary property as she would have had if she had been a son; (c) be
subject to the same liabilities in respect of the said coparcenary property as
that of a son, and any reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a coparcener.’ (See 16th
Edition, 2008 at page 1175).
However,
even after passing of the Amending Act and substitution of S. 6, a number of
questions were raised in the legal circles as to whether the Amending Act was
prospective or retrospective and whether a daughter born before coming into
force of the Amending Act i.e., 9th September 2005 was entitled to
benefit under the newly incorporated S. 6 of the Act. There were divergent
views and conflicting arguments.
The recent judgment of the Full
bench of the Bombay High Court has decided on four questions of importance in
this context by referring to various judgments of the Supreme Court as well as
judgments of House of Lords and Court of Appeal.
In a landmark judgment dated
14/08/2014, the Full bench of the Bombay High Court in bunch of 12 appeals grouped
under Second Appeal No. 566/2011 decided the following issues:
1.
Whether
Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act,
2005 is prospective or retrospective in operation?
Held:
Section 6 as amended by the 2005 Amendment Act is retroactive in nature meaning
thereby the rights under Section 6(10(b) and (c) and under sub-rule (2) are
available to all daughters living on the date of coming into force of the 2005
Amendment Act, i.e. 09/09/2005, though born prior to 09/09/2005. Obviously, the
daughters born on or after 09/09/2005 are entitled to get the benefits of
amended section 6 of the Act under clause (a) of subsection (1). In other
words, the heirs of daughters who died before 09/09/2005 do not get the benefit
of amended section 6.
2.
Whether
Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act,
2005 applies to daughters born prior to 17/06/1956?
Held:
Amended Act applies to daughters born prior to 17/06/1956 provided they are
alive on 09/09/2005, i.e. the date of coming into force of the Amendment Act,
2005.
3.
Whether
Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act,
2005 applies to daughters born after 17/06/1956 and prior to 09/09/2005?
Held:
Amended Act applies to daughters born after 17/06/1956 but before 09/09/2005
provided they are alive on 09/0/2005, i.e. the date of coming into force of the
Amendment Act, 2005.
4.
Whether
Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act,
2005 applies only to daughters born after 09/09/2005?
Held:
The Amended Act applies to daughters born on or after 09/09/2005.
Similar view was taken by the
Orissa High Court in
Pravat Chandra Pattnaik and Others vs.
Sarat Chandra Pattnaik and Another and by the Karnataka High Court in
Sugalabai v. Gundappa A. Maradi and Others.
Several legal reforms
have taken place since independence in India, including on equal share of
daughters to property. Yet equal status remained illusive. Establishment of
laws and bringing practices in conformity thereto is necessarily a long drawn out
process. The government, the legislature, the judiciary, the media and civil
society has to perform their respective roles, each in their own areas of
competence and in a concerted manner for the process to be speedy and
effective. To quote Hon’ble Justice Sujata V. Manohar of Supreme Court of India
"...It is not easy to eradicate deep seated cultural values or to alter
traditions that perpetuate discrimination. It is fashionable to denigrate the
role of law reform in bringing about social change. Obviously law, by itself,
may not be enough. Law is only an instrument. It must be effectively used. And
this effective use depends as much on a supportive judiciary as on the social
will to change. An active social reform movement, if accompanied by legal
reform, properly enforced, can transform society."
A reference to The Convention
on the Elimination of all Forms of Discrimination against Women (the CEDAW
Convention), which is a human rights treaty for women will be an apposite. The
UN General Assembly adopted the CEDAW Convention on 19th December 1979. It came
into force as a treaty on 3rd September 1981; thirty days after the twentieth
member nation became a States party to it. CEDAW is one of the most highly
ratified international human rights conventions, having the support of 185
States parties. This is one of the many benefits of the CEDAW Convention; it
can stand as a treaty that has achieved a global consensus and thus reflects
the normative standards applicable to women's human rights. India has signed
the treaty on 9th July, 1993. The heartening trend is that the
Indian courts are increasingly relying on international standards derived from
various international declarations and conventions. Specifically, CEDAW has
been referred to and relied upon by the Supreme Court in some judgments, viz.
Madhu Kishwar & others v/s State of Bihar & others (1996) 5 SCC 125;
Visakha & Ors. v/s. State of Rajasthan & Ors. AIR 1997 SC 3011; Githa
Hariharan v/s. RBI, AIR 1999 SC 1149. The line of these judgments gives a firm
basis for the women in India to demand gender justice and equal rights on par
with international standards.
However, it is necessary to
understand that if equality exists only as a phenomenon inside the four walls
of a High Court or Supreme Court and outside the awareness and approval of the
majority of the people, it cannot be realized by a section of women socialized
in traditions of inequality. Thus there is need to social awareness and to
educate people to change their attitude towards the concept of gender equality.
The need of the hour is also to focus attention on changing the social
attitudes in favour of equality for all by enacting a uniform law. The
difficult question of implementing the 2005 Act remains. Campaigning for legal
literacy, efforts to enhance social awareness of the advantages to the whole
family if women own property; and legal and social aid for women seeking to
assert their rights, are only a few of the many steps needed to fulfill the
change incorporated in the Act. The Judiciary and the
civil society at large have to play a significant role to achieve the goal.
Even though judiciary
has ruled in favour of gender equality, in a country where female fetus is aborted,
it is going to be a herculean task and cannot be addressed by any judgment of a
Full Bench of a High Court or the Supreme Court in its real sense. The road ahead appears to be long and bumpy.
