“Coparcenary is a birthright.”
The history of personal laws in India is rooted in India’s colonial past. Both Hindu and Muslim Personal Laws were brought in the early 20th century to protect the private realm of the household from the colonial state. These “Hindu” and “Mohammedan” laws were largely retained by the Constitution at the time of independence. Consequently, personal laws as they exist today have largely been drawn from the customs that were favorable to the native patriarchy.
The term ‘personal laws’ circumscribes the scriptural mandates and customary practices within it. By religious personal law, we refer to rules governing the formation of marriage and its dissolution; the respective rights, obligations, and capacities of spouses; the relationship between parents and children; marital property; child custody or guardianship; and inheritance[i]. There are various religious personal laws in India. But the status of women is of great concern as the personal religious laws portray women in a subordinate position to men. The present article is focusing on the disparities which a woman faces through personal religious laws.
In the Vedic times and the ancient ages, women had the liberties to exercise various privileges and rights just like men. They were considered equal at almost all levels. But there was only one sector where women were discriminated against; it was the matter of inheritance. They were not completely excluded from the inheritance, but there was significant male dominance. In the article, we will discuss the provisions of the Hindu Succession Act explaining gender justice and equality. The current status of men and women is also analyzed. It also includes the latest amendments of the Act.
We have seen that there is Gender Inequality in our personal religious laws. Somehow Religious personal laws promote patriarchy, for instance, in Muslim personal laws, marriages occur due to the consent of parents, and there is no specific age of marriage also so, it may cause early marriages. If early marriage happens then, definitely there will be a lack of education. In our country, it is considered that if a girl is not educated then give more dowry so that it can be compensated. Dowry further leads to Domestic violence. Dowry occurred from Religious personal laws & now it has become taboo for our society.
As many as 15,000 women annually are killed by their husbands in disputes over dowry. Reported dowry deaths have increased by 170 percent in the past decade. Thousands more are injured and maimed because the husband, or the husband`s family, is dissatisfied with the dowry brought by the wife. In India, sometimes women are burned if their parents didn`t pay enough dowry when the girl got married. This is often called a “kitchen accident”; in 99% of these “kitchen accidents,” a woman is murdered. 4000 women are burned every year[ii]. The international center for research on women, in a study on domestic violence, found that 12% of Indian women cited dowry harassment as the cause of domestic violence[iii]. If women get a divorce, then women go into a state of loneliness. Loneliness further leads to psychological harassment. Divorce creates problems for maintenance because there is no such law for maintenance. Early marriage also leads to early pregnancy and the birth of children that the leading cause of a mother’s poor health and such high maternal mortality.
So, overall, somehow, many societal issues emerge from the personal religious laws along with gender inequality.
This existence of various ‘religious’ laws is increasingly being described as legal pluralism. The ambiguous status of religious personal laws serves to legitimize the continued denial by the state of gender equality to women in family law matters as it creates a space for rules or laws to operate that do not conform to the Constitutional requirements and yet are enforced by the state. Religious Personal Laws are used as a mode of governance where their ambiguous status serves to legitimize the continued denial by the state of gender equality to women in family law matters, for example in succession rules.
THE HINDU PERSONAL LAW (SUCCESSION)
From the 1900s to 2020, there have been several changes in the laws regarding what share of the property do females get in a Hindu Undivided Family (HUF). As termed by the experts, the Classical Law period, which is from 1860-1937 saw one of the first significant changes with respect to the laws for females in a HUF. In this time period, a new law was passed which stated that no widow had the right to demand partition, but on the other hand, the widowed mother received a certain share when there was a partition between brothers in the family.
Moving onto the Act which was passed in 1937, there was a huge development regarding the rights for widows in a HUF. Finally, in this Act, it was stated the right to partition would be given to widows, and this gives them the right to step into the shoes of the deceased coparcener. It was also mentioned in this Act that the widows only had a limited right and didn’t have the right to alienate whenever they wanted to. This move was not welcomed by the entire population of India and received severe backlash from certain parts of the community. Some say this was the first step to females getting equal rights when it came to properties in a HUF.
Now swiftly moving onto 1956 when the next amendment was made in the Hindu Succession Act. This, as said by many experts, is said to be one of the most significant developments with respect to female rights to property in a HUF. This amendment tweaked the famous Section 6 in the Hindu Succession Act. This section contains the list of Class 1 heirs which in simple terms shows the list of family members who will be first in line to get property when a partition takes place in a HUF. In the 1956 amendment, the mother, daughter, and widow have also been added to the list of Class 1 heirs. This meant that now the mother, daughter, and widow would be first in line to get property in case a partition takes place in a HUF.
Another significant amendment was with respect to Section 14 of the above-mentioned Act. Now, this particular Section would have a retrospective effect for females including widows. This Section states that any property which is owned by a female Hindu, whether acquired before or after the commencement of the said Act shall be held by her as a full owner and not in a limited capacity. This was a monumental step in terms of females getting equal rights with respect to property in India.
AMENDED TEXT (2005)
Legal experts across India deemed this as one of the most progressive moves that the Indian judiciary has taken in the past few decades. This Amendment Act brought various changes in the rights of women towards property and established them as equal to men. The changes are:
- Section 4(2) of the Act was omitted; this Section stated that the Act shall not override the provisions of any other act. It created inequality against women by obstructing them to capacitate the agricultural land.
- Section 6 of the Act creates an equal position for women by providing the right of coparcener in which a daughter of the Hindu joint family is considered as a coparcener, and they are entitled to all the rights and liabilities as a son. Further, the daughter holds the position of coparcener even after her marriage because they are provided with the right of coparcener by virtue of their birth. As of now, a woman has equal rights as men in the property of a Hindu joint family.
- Section 23 of the Act was omitted as it divested the right of women to obtain a partition of the dwelling house. The provision stated that a female can dwell in the house only when she is unmarried, separated, or widowed, which creates inequality. So, this section was omitted by the amendment Act and gave women the right to the dwelling house.
- Section 24 of the Act states that the widow of the predeceased son, the widow of the predeceased son, and the widow of the brother are not entitled to the share in the husband’s property if she remarries. But she deserves a share in the husband’s property, so the said section was rescinded by the Amendment Act 2005.
- Finally, Section 30 of the Act of the was substituted by certain words such as “disposed of by him or her” instead of him which creates a right for women to dispose of their property.
Even though all this was a great move by the government, there was a caveat in all this. The caveat, in this case, was that these Sections would apply only if the daughter and the father are alive on September 9, 2005 (the date the amendment was passed). This caveat was not welcomed by a lot of the population as this set a condition that had to be fulfilled before the right would be given to the daughters.
While the 2005 amendment granted equal rights and liabilities to women, many disputes had arisen pertaining to the nature of the Hindu Succession (Amendment) Act, 2005: whether this law is retrospective in nature or does it have a retrospective effect or not? And also, whether the rights of women are dependent on the living status of their fathers at the time of amendment or not? Different benches of the Supreme Court have given conflicting views upon these questions in various cases. Relying on such conflicting views by considering them as ‘binding precedents’ many High Courts have also decided on some cases.
Prakash v. Phulavati (2016)
In this case, the decision was given by a two-judge bench headed by Justice A.K. Goel, it was held that if the coparcener (father) is died prior to 9th September 2005 (the date on which the amendment came into force), his daughter will have no inheritance right to be entitled in the coparcenary property. So, the benefit of such amendment will only be given to “living daughters of living coparceners” on 9th September 2005.
Danamma v. Amar Singh (2018)
The father need not necessarily be alive on the enactment of the Hindu Succession (Amendment) Act, 2005 for daughters to become a coparcener.
A two-judge bench headed by Justice A.K. Sikri has held that daughters could claim their coparcenary property even if their fathers were dead before the enactment of the Hindu Succession (Amendment) Act, 2005.
As these conflicting perspectives were given by the benches of equal strength, that led to the reference to the larger bench on the current case i.e., a three-judge bench in the case of Vineeta Sharma v. Rakesh Sharma (2020).
Vineeta Sharma v. Rakesh Sharma (2020)
The Supreme Court disagreed with the Prakash v. Phulavati case and agreed with the Danamma v. Amar Singh case.
The father need not necessarily be alive on the enactment of the Hindu Succession (Amendment) Act, 2005 for daughters to become a coparcener. Daughters could claim their coparcenary property even if the father were dead before the enactment of the Hindu Succession (Amendment) Act, 2005.
The daughters have their right to the ancestral property since birth as they are a coparcener since birth in the same manner as a son.
“Half of the Indian population too are women. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude, and yet they have been subjected to all equities indignities, inequality and discrimination” said Justice K. Rama Swamy[iv].
As said by Justice Rama Swamy, there is discrimination against girls in India. There are various religions and personal laws too, which were formulated as per the necessity of particular religion. Religious personal laws have been discriminatory against women. There are mentions of many discriminatory jurisprudences for women. Such discriminations are not present in Civil laws. Civil laws have a better position for women as compared to religious personal laws. It can be due to the patriarchal setup and culture of dependency of women on men in India that prevailed before the dawn of the 21st Century.
Religion is a matter of belief; belief is a matter of conscience, and freedom of conscience is the bedrock of modern civilization. In a multi-religious country like India which has opted for a secular State, it is the right of every citizen to elect to be governed by secular laws in personal matters, and it is the duty of the state to provide an optional secular code of family laws. But the Indian Parliament is adopting an ambivalent attitude due to political compulsions.[v]
Let the women fly in the sky by removing the oppression posed on her and enlighten her world with new dreams, aims, and aspirations.