Family Law Project

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PROJECT-FEMALE AS KARTA

CHANAKYA NATIONAL LAW

UNIVERSITY, PATNA

PROJECT OF FAMILY LAW-II

Submitted to:- Ravi Ranjan Sir

Submitted

Submitted by:-Aparna

by:-Aparna Arya,

Arya,

B.A.LL.B.(hons.)

Roll no.-111

semester-!

AKNOWLEDGEMENT

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Writing a project is one of the most significant academic challenges, I

have ever faced. Though this project has been presented by me but

there are many people who remained in veil, who gave their all

support and helped me to complete this project.

First of all I am very grateful to my subject teacher Ravi Ranjan sir

without the kind support of whom and help the completion of the

project

project was

was a

a herculean

herculean task

task for

for me.

me. e

e donated

donated his

his valuable

valuable time

time

fr

from

om hi

his

s bu

busy

sy sc

sche

hedu

dule

le to

to he

help

lp me

me to

to co

comp

mple

lete

te th

this

is pr

proj

ojec

ect

t an

and

d

suggested me from where and how to

suggested me from where and how to collect data.

collect data.

I am very thankful to the librarian who provided me several books on

this topic which proved

this topic which proved beneficial in completing this project.

beneficial in completing this project.

I last but not the least, I am very much thankful to my parents and

family, who always stand aside me and helped me a lot in accessing

all sorts of resources.

I thank all of them!

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1. Introduction..."

2. Women#s position in coparcenary...$

3. Women#s property right% hindu, muslim, christian...&'

4. Women as a karta...&$

5. (udicial reforms...')

6. *onclusion...'+

I-I/R012

1. INTRODUCTION

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The -aw *ommission of India in its &3"th Report on 41roperty Rights of Women5 1roposed Reforms under the indu -aw6 in 7ay '))) mentioned in the introduction itself that

48iscrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws governing the inheritance9succession of property amongst the members of a (oint indu family. It seems that this discrimination is so deep and systematic that it has placed women at the receiving end. Recogni:ing this the -aw *ommission in pursuance of its terms of reference, which, inter%alia, oblige and empower it to make recommendations for the removal of anomalies, ambiguities and ine;ualities in the law, decided to undertake a study of certain provisions regarding the property rights of indu women under the indu <uccession 0ct, &=>?.

7uch like those of women of any other country, property rights of Indian women have evolved out a continuing struggle between the status ;uoist and the progressive forces. 0nd pretty much like the property rights of women elsewhere, property rights of Indian women too are une;ual and unfair5 while they have come a long way ahead in the last century, Indian women still continue to get less rights in property than the men, both in terms of ;uality and ;uantity. What may be slightly different about the property rights of Indian women is that, alongwith many other personal rights, in the matter of property rights too the Indian women are highly divided within themselves. ome to diverse religions, till date, India has failed to bring in a uniform civil code.

Therefore every religious community continues to be governed by its respective personal laws in several matters @ property rights are one of them. Infact even within the different religious groups, there are sub%groups and local customs and norms with their respective property rights. Thus indus, <ikhs, uddhists and (ains are governed by one code of property rights codified only as recently as the year &=>?, while *hristians are governed by

another code and the 7uslims have not codified their property rights, neither the <hias nor the <unnis.

0lso, the tribal women of various religions and states continue to be governed for their property rights by the customs and norms of their tribes. To complicate it further, under the

Indian *onstitution, both the central and the state governments are competent to enact laws on matters of succession and hence the states can, and some have, enacted their own variations of property laws within each personal law. There is therefore no single body of property rights of Indian women.

The property rights of the Indian woman get determined depending on which religion and religious school she follows, if she is married or unmarried, which part of the country she comes from, if she is a tribal or non%tribal and so on. Ironically, what unifies them is the fact that cutting across all those divisions, the property rights of the Indian women are immune from *onstitutional protectionA the various property rights could be, as they indeed are in several ways, discriminatory and arbitrary, notwithstanding the *onstitutional guarantee of e;uality and fairness. For by and large, with a few eBceptions, the Indian courts have refused to test the personal laws on the touchstone of *onstitution to strike down those that are clearly unconstitutional and have left it to the wisdom of legislature to choose the time to

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frame the uniform civil code as per the mandate of a 8irective 1rinciple in 0rticle "" of the *onstitution.

W7CD#< 1<ITID 0FTCR RI/T T 1R1CRT2 0*T &=+3

indus were governed by <hastric and *ustomary laws which varied from region to region and sometimes it varied in the same region on a caste basis. 0s the country is vast and communications and social interactions in the past were difficult, it led to a diversity in the law. *onse;uently, in matters of succession also, there were different schools, like 8ayabhaga in engal and the adjoining areasA 7ayukha in ombay, Eonkan and /ujarat and 7arumakkattayam or Dambudri in Eerala and 7itakshara 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 compleB. 0 woman in a joint indu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. Do female is a member of the coparcenary in 7itakshara law. nder the 7itakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged.

The 7itakshara law also recognises inheritance by succession but only to the property separately owned by an individual, male or female. Females are included as heirs to this kind of property by 7itakshara law.efore the indu -aw of Inheritance G0mendmentH 0ct &='=, the engal, enares and 7ithila sub schools of 7itakshara recognised only five female relations as being entitled to inherit namely % widow, daughter, mother paternal grandmother, and paternal great%grandmother.

The 7adras sub%school recognised the heritable capacity of a larger number of females heirs that is of the sons daughter, daughters daughter and the sister, as heirs who are eBpressly named as heirs in indu -aw of Inheritance G0mendmentH 0ct,&='=. The sons daughter and the daughters daughter ranked as bandhus in ombay and 7adras. The ombay school which is most liberal to women, recognised a nunmber of other female heirs, including a half sister, fathers sister and women married into the family such as stepmother, sons widow, brothers widow and also many other females classified as bandhus.The 0ct of &=+3 gave

absolute rights to all indu women over a certain portion of <tridhan.

The part of <tridhan, ac;uired by the female independently or the part that was gifted to her by her parents gave her an absolute right over the aforesaid portions. <he became the absolute owner of such <tridhan. owever, the form of <tridhan, ac;uired by her from her in%laws, gave her only a limited right over such variety.

n her death, the latter portion went to her reversioners Gthe lot which would have ac;uired the property had the female not eBisted in the first placeH. 0s per the provisions of this 0ct, if a male member of a 7itakshara (oint indu family died and was survived by his widow then the latter could claim a share of the deceased coparcener subject to certain conditions. nder

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this 0ct, the widow was also conferred the right to demand partition and claim the share that the deceased coparcener was entitled to. This legislation was later repealed by the 0ct of &=>?.

The indu Women#s Rights to 1roperty 0ct, &=+3, ameliorative in character, intended to give better rights to women in respect of property but without interfering with the established -aw relating to joint family. <ubsections G'H and G+H of <ection + of the 0ct reveal that the legislature intended that the indu widow should have in the joint family property the same interest to ;ualify the nature of that interest i.e., it Would be a limited interest known to indu law as JWoman#s CstateJ or to use the correct eBpression Kindu Widows Cstate.J The very use of the word woman#s estate prima facie established that she could alienate it for the purposes permitted under the indu law i.e., 4-egal necessity6, 4Religious purposes6 and 4benefit of estate6. Thus the woman#s estate under the indu Woman#s Rights to 1roperty 0ct, &=+3 has all the characteristic features of woman#s estate which were there under the old law. The widow#s powers of alienation have been discussed in detail. er powers under the &=+3 0ct are the same because the nature of the property is the same. The act has only given a statutory, recognition to her 4woman#s estate6.

<urrender means renunciation of the estate by the female owner. <hehas the power of renouncing the estate in favour of nearest reversioners. This means that by a voluntary act, she can accelerate the estate of the reversioner by conveying absolutely estate and thereby destroying her own estate. This is an act of self%effacement on her part and operates as her death will. In Datwar vs. 8adu, the <upreme *ourt held that it is the self%effacement by the widow that forms the basis of surrender and not the eB%facia transfer by which the effacement is brought about.

For a valid surrender, the first condition is that it must be of, the entire estate, though she may retain a small portion for her maintenance , second condition is that it must be made in a favour of the nearest reversioner or reversioners, in case there are more than one of the same category. <urrender can be made in favour of female reversioner also. The third and theL last condition is that surrender must be bonafide, and not a device of dividing the estate with the reversioners.

When a indu female surrender her estate the estate vests in the reversioners by the operation of law, and no act of acceptance by the reversioners is necessary. Do formalities are necessary. 0 sale of estate for consideration, to the reversioners cannot be regarded as surrender.

The indu law of intestate <uccession has been codified in the form of The indu <uccession 0ct, &=>?, which bases its rule of succession on the basic 7itakshara principle of propin;uity, i.e., preference of heirs on the basis of proBimity of relationship. 1rior to &=>?,

there used to be two major schools of indu law vi:. 7itakshara and 8ayabhaga which laid down different principles of succession. There was no uniformity in the rights of the indus following different schools to succeed to the property of a indu who died intestate i.e., without leaving a will behind him.

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Therefore, before &=>?, the property of a indu woman was divided into two heads vi:. GaH <tridhan GbH Womans Cstate. <tridhan literally means womans property. The indu law interpreted <tridhan as the properties received by a woman by way of gift from relations. It included movable as well as immovable properties. The teBts relating to <tridhana eBcept in the matter of succession are fairly ade;uate and clear. 7anu defined <tridhana as that what was given before the nuptial fire, what was given at the bridal procession, what was given in token of love and what was received from a brother, a mother, or a fatherM

The property inherited by a woman from a male or female was not considered as <tridhana and it was not her absolute property for the purpose of inheritance&?$. owever ombay school considered the property inherited by a woman form a male other than widow, and mother etc. as <tridhan. nder all schools of indu law, the property obtained by a woman in lien of maintenance by adverse possession and property purchased with <tridhan was considered as <tridhan.

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'.

Women’s pos!on n "op#$"en#$%

The property rights of the indu women are highly fragmented on the basis of several factors apart from those like religion and the geographical region which have been already mentioned. 1roperty rights of indu women also vary depending on the status of the woman in the family and her marital status5 whether the woman is a daughter, married or unmarried or deserted, wife or widow or mother.

It also depends on the kind of property one is looking at5 whether the property is hereditary9 ancestral or self%ac;uired, land or dwelling house or matrimonial property. 1rior to the indu <uccession 0ct, &=>? K<hastric# Gindu *anonicalH and customary laws that varied from region to region governed the indus. *onse;uently in matters of succession also, there were different schools, like 8ayabhaga in engal in eastern India and the adjoining areasA 7ayukha in ombay, Eonkan and /ujarat in the western part and 7arumakkattayam or Dambudri in Eerala in far south and 7itakshara in other parts of India, with slight variations.

7itakashara school of indu law recognises a difference between ancestral property and self% ac;uired property. It also recognises an entit y by the name of 4coparcenary6. 0 coparcenary is a legal institution consisting of three generations of male heirs in the family. Cvery male member, on birth, within three generations, becomes a member of the coparcenary.

This means that no person#s share in ancestral property can be determined with certainty. It diminishes on the birth of a male member and enlarges on the death of a male member. 0ny coparcener has the right to demand partition of the joint family. nce a partition takes place, a new coparcenary would come into eBistence, namely the partitioned member, and his neBt two generations of males. For this reason coparcenary rights do not eBist in self%ac;uired property, which was not thrown into the common hotchpotch of the joint family.

Thus the concept of a birthright, at which a person ac;uires rights on his birth even if the ancestor is still alive, is fundamental to an understanding of the coparcenary. In fact, the birth of a male child diminishes the right of the ancestor instantly, as each coparcener has an e;ual share in the undivided whole. 0s contrasted with this, inheritance, whether testamentary or intestate, is a right that accrues on the death of a person. Inheritance can only be in that property which a man leaves on his death.&

ntil then, a person has an unrestricted right to enjoy the property or alienate it. The indu <uccession 0ct enacted in &=>? was the first law to provide a comprehensive and uniform system of inheritance among indus and to address gender ine;ualities in the area of inheritance @ it was therefore a process of codification as well as a reform at the same time. 1rior to thisA the indu Women#s Rights to 1roperty 0ct, &=+3 was in operation and though this enactment was itself radical as it conferred rights of succession to the indu widow for 1 P!"# C$#%$#, &H'(% F#)'*+ P!!/+ *#0 '( I(%'# #(% (%! E#*'/+

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the first time, it also gave rise to lacunae which were later filled by the indu <uccession 0ct G<0H. <0 was the first post%independence enactment of property rights among indus @ it applies to both the 7itakshara and the 8ayabhaga systems, as also to persons in certain parts of <outh India previously governed by certain matriarchal systems of indu -aw such as the 7arumakkatayam, 0liyasantana and Dambudri systems.

The main scheme of the 0ct is5 The hitherto limited estate given to women was converted to absolute one. Female heirs other than the widow were recogni:ed while the widow#s position was strengthened. The principle of simultaneous succession of heirs of a certain class was introduced. In the case of the 7itakshara *oparcenary, the principle of survivorship continues to apply but if there is a female in the line, the principle of testamentary succession is applied so as to not eBclude her. Remarriage, conversion and unchastity are no longer held as grounds for disability to inherit.

Cven the unborn child, son or daughter, has a right if s9he was in the womb at the time of death of the intestate, if born subse;uently. nder the old indu -aw only the 4streedhan6 Gproperties gifted to her at the time of marriage by both sides of the family and by relatives and friendsH was the widow#s absolute property and she was entitled to the other inherited properties only as a life%estate with very limited powers of alienation, if at all. Cven under the

&=+3 0ct, the concept of 4limited estate6 continued.

<ection &" of the indu <uccession 0ct removed the disability of a female to ac;uire and hold property as an absolute owner, and converted the right of a woman in any estate already held by her on the date of the commencement of the 0ct as a limited owner, into an absolute owner. The provision is retrospective in that it enlarged the limited estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the 0ct came into force. The only eBception, in the form of a proviso, is for the ac;uisitions under the terms of a gift, will or other instrument or a decree, or order or award which prescribe a restricted estate.'

Women as a karta

In the entire indu (oint Family KEarta# or K7anager# occupies a very important position. There is no office or institution in any other system of the world can be compared with it. e is a person with limited power but he possess such vast power with in ambit of joint family which nobody enjoys. 0s per indu -aw, a Kkarta# is defined as the senior%most family member, entitled to manage family affairs. This position has traditionally been held by

2 T$ K!#*# J'(/ F#)'*+ S+/) 9A=*'/'(; A/ 176, /$ H'(% S'( 9A(%$!# P!#%$ A)(%)(/; A/, 1<6, /$ H'(% S'( 9T$ T#)'*(#% A)(%)(/; A/ 1<, /$ H'(% S'( 9K#!(#/#># A)(%)(/; A/ 14, /$ H'(% S'( 9M#$#!#$/!# A)(%)(/; A/ 14.

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men.The feelings of piety and benevolence have an abiding place in human heart, they must find eBpression in religious and charitable gifts. +

Therefore, the Earta or manager of the joint indu family was given eBtended powers and he could alienate not merely his own share but a portion of the joint family for family necessity or for the benefit of family so as to bind the interest of all the coparceners, no matter whether minor or adults. The foundation of this doctrine could be foundL in the teBt of Nyasa which was ;uoted and relied upon by Nijnaneswara and which runs as follows5

JCven a single individual may conclude a donation, mortgage, or sale of immovable property, during a season of distress, for the sake of the family, and especially, for pious purposes.J 0fter amendment made by indu <uccession G0mendmentH 0ct, '))>, daughter can be coparcener of F like the sons of F. 0fter her marriage she becomes member of her husband#s F and continues to be a coparcener of her father#s family. eing a coparcener, she can also seek partition of the dwelling house where the family resides and she can also dispose of her share in coparcenery property at her own will."

If a indu dies, the coparcener property shall be allotted to the daughter as is allotted to sons. If a female coparcener dies before partition, then children of such coparcener would be eligible for allotment, assuming a partition had taken place immediately before her demise. 0 widow of a pre%deceased son even though remarried is now eligible for share in property as legal heir of the pre%deceased son of the family. Female as Earta 7any courts had held that only a coparcener can become Earta of F.

<ince, a female was not considered as coparcener, she was not empowered to act as Earta prior to amendment in indu <uccession 0ct. owever, w.e.f. ?th<eptember, '))>, after

amendments made by indu <uccession G0mendmentH 0ct, '))> in respect of position of female member, the daughter of coparcener shall by birth become a coparcener in her own right in the same manner as the son.

The indu <uccession 0ct came into force on &3th_{(une, &=>?. Fundamental changes have bee}

n brought about in the indu <uccession 0ct, &=>? by amending it recently in '))>. The basic change is that <ection ? has been substitutedby a new section. The section stipulates that a daughter wouldbe a coparcener from her birth, and would have the same righ tsand liabilits as a son.

The daughter would hold property towhich she is entitled as a coparcener with all the incident s,rights and liabilities of coparcenary property and would be construed as property being capable of being disposed off by herby either a will or any other t

3 P!"# C$#%$#, &H'(% F#)'*+ P!!/+ *#0 '( I(%'# #(% (%! E#*'/+ A(#*+'  /$ H'(% S'( A/ 1568, V* 2, SCJ J 16. 92::2;

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estamentary disposition. Thesechanges have been sought to be made on the touchstone of e;uality, thus seeking to remove the perceived disability to which a daughter was subjected.

The implications of this fundamental change are wide. <ince a daughter now stands on an e;ual footing with ason of a coparcener, she is now invested with all the rights, including the right to seek partition of the coparcernaryproperty. Where under the old law, since a female could not actas Earta of the joint family, as a result of the new provision,she could also become Earta of the joint indu f

amily. <ub section G'H stipulates that any property to whicha female indu becomes entitled, under sub section G&H, would be held by her with all the incidents of coparcenary ownership. To retain the 7itakshara joint family and at the same time to put a daughter on the same footing as a son with respect to the right by birth, right of survivorship and to claim partition at any time, will be to provide for a joint family unknown to law and unworkable in practice.6 owever there was one striking feature of all these four state amendments @ they held that only a daughter who was unmarried at the time of the amendment would be entitled to be a coparcener. The amending 0cts of 0ndhra 1radesh, Tamil Dadu and 7aharashtra add three sections namely '=0, '= and '=* and Earnataka adds them as <ections ?0, ? and ?* of the 0ct.

Thus, these amendments state that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son. Thus, a daughter will also be entitled to be a karta of the joint family, and will by virtue of that position eBercise the

right to spend the income for joint family properties for legal necessity of benefit of the

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3.

Women’s p$ope$!% $&'!s( )n*+, M+s-m, C'$s!#n.

The seed for personal law was sown by the ritish with the engal Regulation of &33' providing that in disputes relating to family like inheritance, marriage, divorce, adoption etc, the courts should apply the laws of Ouran with respect to 7uslims and for indus, the <hastric law. 0s far as *hristians were concerned, there was no specific law for them. ence disputes were settled as per Cnglish principles of (ustice, C;uity and /ood conscience.

The ritish policy of non%interference with the personal laws of different communities took its deep roots in the communities and the /overnment of India has been continuing the policy of non%interference even though it has ratified the *C80W convention. <o the *onstitutional mandate of niform *ivil *ode under 0rticle "" of the *onstitutionwent into oblivion. estate. It was /autama 8harmasastra who first called women#s property as <tridhana share. 7ayne also opined that the original bride price payable to the parents appears to have become transferred into the dowry for the wife.>_{0part from this stridhana, a married woman could}

receive gifts from strangersA she could also make her own contributions by doing other skilled labor. 2et she had no absolute control over her property because her right to dispose of the property is restricted.

Women#s property rights in the 1atriarchal Family

0 indu father in patriarchal family enjoyed absolute power just as the Roman father in ancient Rome. The scriptures undoubtedly contributed much to make the father, the head of the family a despotic ruler. 7anu said that three persons, a wife, a son and a slave are declared by law to have in general no wealth eBclusively their ownA the wealth which they may earn is regularly ac;uired for the man to whom they belong.

<imilarly Darada held the view that a son could be independent only if his parents are deadA during their lifetime he is dependent even though he is grown old&$. <o in a patriarchal family women and children did not have property rights. The wife was put into the group of chattels and slaves. They had an oppressed and subjugated life in the traditional patriarchal families.?

There were also fears among the orthodoB indu men that if women were given property rights families would breakup. In &="$ there was an 0ll India 0nti indu *ode *onvention. It was argued that the introduction of women#s share would result into disintegration of indu family system which had been working as a co%operative system for ages for preservation of family ties and property. It was also pointed out that the inclusion of daughter

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in the line of inheritance is due to Curopean influence. The history of indu -aw reform starts with the indu -aw committee GRau *ommitteeH set up in &="&.

It was followed by second *ommittee in &="". The committee finally submitted its report to the Federal 1arliament in &="3. The recommendations of the committee were debated in the provincial 1arliament. There was strong opposition against the introduction of monogamy,

divorce, abolition of coparcenery and inheritance to daughters from the orthodoB indu community.

The framers of the Indian *onstitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the <tate took positive steps to give her e;ual status. 0rticles &", &>G'H and G+H and &? of the *onstitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the <tate to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the *onstitution. 1art IN of the *onstitution contains the 8irective 1rinciples which are no less fundamental in the governance of the <tate and inter%alia also provide that the <tate shall endeavour to ensure e;uality between man and woman Dotwithstanding these constitutional mandates9directives 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 land.

Women#s right to property has been substantially improved by the indu <uccession 0ct &=>?. The concept of women being entitled to a limited estate when they ac;uire property by inheritance is abolished and women are entitled to an absolute estate like men when they inherit any property. 0gain the daughter of a predeceased son and the daughter of a predeceased daughter are raised to a higher rank. They became *lass @ I heirs and get a share along with the son, and other *lass @ I heirs. The daughters are included in the *lass @ I in order to remove the discrimination on the basis of seB.

<imilarly succession to a women#s property or stridhanam of whatever nature is made uniform irrespective of the nature of stridhanam. In the same way the distinction between male and female heirs in the case of succession has been taken away and now they are treated on e;ual basis if they belong to the same degree of relationship. Women will no longer be disinherited on the ground of unchastit y.3

The -aw *ommission was concerned with the discrimination inherent in the 7itakshara coparcenary under <ection ? of the indu <uccession 0ct, as it only consists of male members. The *ommission in this regard ascertained the opinion of a cross section of society in order to find out, whether the 7itakshara coparcenary should be retained as provided in section ? of the indu <uccession 0ct, &=>?, or in an altered form, or it should be totally abolished. There were other ;uestions involved also, like should women be karta in absence 7 S$**+ S#*?# #(% S)+# S#@(#, &C$#( =!$/ '( /$ '/'(  0)( #/! /$ 2::5 9A)(%)(/;8 #"#'*#=* #/B $//B000.*#*!"''(%'#.) 9A% ( 21.:5.2:1:;.

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of male members M The *ommissions main aim was to end gender discrimination which is apparent in section ? of the indu <uccession 0ct,&=>?, by suggesting appropriate amendments to the 0ct. 0ccordingly, the amendment was made by the legislature in 8ecember '))" and it conferred e;ual property share from the ancestral property on the daughter. y birth a daughter would ac;uire property rights and would be like any other coparcenary.

In the face of such multiplicity of succession laws diverse in their nature, property laws continued to be compleB and discriminatory against women. The social reform movement during the pre%independence period raised the issue of gender discrimination and a number of ameliorative steps were initiated.

7uslim women#s property rights5 Indian 7uslims broadly belong to two schools of thought in Islamic -aw5 the <unnite and the <hiite. roadly the Islamic scheme of inheritance discloses three features, which are markedly different from the indu law of inheritance5 GiH the Eoran gives specific shares to certain individuals GiiH the residue goes to the agnatic heirs and failing them to uterine heirs and GiiiH be;uests are limited to one%third of the estate, i.e., maBimum one%third share in the property can be willed away by the owner.

The main principles of Islamic inheritance law which mark an advance vis%P%vis the pre% Islamic law of inheritance, which have significant bearing on the property rights of women, are5 GiH the husband or wife was made an heir GiiH females and cognates were made competent to inherit GiiiH parents and ascendants were given the right to inherit even when there were male descendants and GivH as a general rule, a female was given one half the share of a male. The newly created heirs were mostly femalesA but where a female is e;ual to the customary heir in proBimity to the deceased, the Islamic law gives her half the share of a male. For eBample, if a daughter co%eBists with the son, or a sister with a brother, the female gets one share and the male two shares. $

The doctrine of survivorship followed in indu law is not known to 7ohammedan lawA the share of each 7uslim heir is definite and known before actual partition. Rights of inheritance arise only on the death of a certain person. ence the ;uestion of the devolution of inheritance rests entirely upon the eBact point of time when the person through whom the heir claims dies, the order of deaths being the sole guide. The relin;uishment of a contingent right of inheritance by a 7uslim heir is generally void in 7ohammedan law, but if it is supported by good consideration and forms part of a valid family settlement, it is perfectly valid. The

rule of representation is not recogni:ed, for eBample, if 0 dies leaving a son  and a predeceased son#s son *, the rule is that the nearer eBcludes the more remote and, there being no representation, * is entirely eBcluded by . There is however no difference between movable property and immovable property. =

< T.K.R#?#*#>$)', &M*') W)( )! V*(!#=*8 F!(/*'(, V*.24, ' 2, J#(-F=-27, 2::7.

I='%.

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The following &' heirs constitute *lass I heirs GEoranic eirsH5 GaH eirs by 0ffinity % usband and Wife GbH lood Relations % Father, True /randfather Ghowsoever highH, 7other, True /randmother Ghowsoever highH, 8aughter, <on#s 8aughter Ghowsoever lowH, Full sister, consanguine sister, uterine brother, and uterine sister. Rules of CBclusion5 The husband and wife are primary heirs and cannot be eBcluded by anyone, but they also don#t eBclude anyone either. -aw fiBes the share of the spousesA if they eBist they reduce the residue which may be taken by the 0gnatic or terine heirs, but they do not eBclude either wholly or partly any heir. The father does not affect the share of any Eoranic heir eBcept the sisters Gfull, consanguine or uterineH all of whom he eBcludes. The mother eBcludes the grandmother, and the nearer grandmother eBcludes the more remote.

The mother#s share is affected by the presence of children or two or more brothers or sisters. er share is also greatly affected by the eBistence of the husband or wife and the father. In the case of a daughter she is the primary heir. <he partially eBcludes lower son#s daughters, but one daughter or son#s daughter does not entirely eBclude a lower son#s daughter. 0s far as the sisters are concerned, one full sister does not eBclude the consanguine sister, two full sisters however eBclude the consanguine sister. The uterine brother or sister is not eBcluded by the full or consanguine brother or sister.

0nother rule that re;uires consideration is that, Ka person though eBcluded himself, may eBclude others.# For eBample, in a case where the survivors are the mother, father, and two sisters5 the two sisters are eBcluded by the fatherA and yet they reduce the mother#s share to &9? th . *lass II heir G0gnatic heirH5 Their classification is done as followsA 7ales G/roup IH% the agnate in his own right, /roup II GfemalesH%the agnate in the right of another, /roup III @ the agnate with another. The first group comprises all male agnatesA it includes the son, the son#s son, the father, the brother, the paternal uncle and his son and so forth. These in pre% Islamic law were the most important heirsA to a large eBtent they retain, in anafi law, their primacy, influence and power.&)

The second group contains four specified female agnates, when they co%eBist with male relatives of the same degree, namely, daughter Gwith sonH, and son#s daughter howsoever low with e;ual son#s son howsoever low, full sister with full brother and consanguine sister with consanguine brother. The third group comprises the case of the full sister and consanguine sister. For eBample if there are two daughters and two sisters, here the daughter is preferred as a descendant to the sister who is a collateralA thus the daughter would be placed in *lass I and she would be allotted the Eoranic share and the residue would be given to the sister as a member of *lass II. nder this system the rule that is followed is first the descendants, then the ascendants and finally the collaterals.

The agnatic heirs come into picture when there are no Eoranic heirs or some residue is left after having dealt with the Eoranic heirs. *lass III Gterine heirH5 This class is constituted 1: T$ K!#*# J'(/ F#)'*+ S+/) 9A=*'/'(; A/ 176, /$ H'(% S'( 9A(%$!# P!#%$ A)(%)(/; A/, 1<6, /$ H'(% S'( 9T$ T#)'*(#% A)(%)(/; A/ 1<, /$ H'(% S'( 9K#!(#/#># A)(%)(/; A/ 14, /$ H'(% S'( 9M#$#!#$/!# A)(%)(/; A/ 14.

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mainly by the female agnates and cognates. *lassification is group Idescendants, which are daughter#s children and their descendants and children of son#s daughters howsoever low and their descendants, /roup II%ascendants, which are false grandfathers howsoever high and false grandmothers howsoever high, /roup III% collaterals, which are descendants of parents and descendents of grandparents true as well as false. 7embers of this class succeed only in the absence of members of *lass I and *lass II. &&

owever if he registers his eBisting marriage under the provisions of the <pecial 7arriage 0ct, &=>" he has all the powers of a testator under the Indian <uccession 0ct, &='>. 1roperty rights of *hristian, 1arsi GQoroastriansH women5 The laws of succession for *hristians and 1arsis are laid down in the Indian <uccession 0ct, &='> GI<0H. <ections +& to "= deal with *hristian <uccession and <ections >) to >? deal with <uccession for 1arsis. *hristian women#s property rights5 The Indian *hristian widow#s right is not an eBclusive right and gets curtailed as the other heirs step in. nly if the intestate has left none who are of kindred to him, the whole of his property would belong to his widow. &'

Where the intestate has left a widow and any lineal descendants, one third of his property devolves to his widow and the remaining two thirds go to his lineal descendants. If he has left no lineal descendents but has left persons who are kindred to him, one half of his property devolves to his widow and the remaining half goes to those who are of kindred to him. 0nother anomaly is a peculiar feature that the widow of a pre%deceased son gets no share, but the children whether born or in the womb at the time of the death would be entitled to e;ual shares. Where there are no lineal descendants, after having deducted the widow#s share, the remaining property devolves to the father of the intestate in the first instance. nly in case the father of the intestate is dead but mother and brothers and sisters are alive, they all would share e;ually.&+

If the intestate#s father has died, but his mother is living and there are no surviving brothers, sisters, nieces, or nephews, then, the entire property would belong to the mother. 0 celebrated litigation and judgment around the *hristian women#s property rights is 7ary Roy v. <tate of Eerala  others ? in which provisions of the Travancore *hristian <uccession 0ct, &)=' were challenged as they severely restricted the property rights of women belonging to the Indian

11 T.K.R#?#*#>$)', &M*') W)( )! V*(!#=*8 F!(/*'(, V*.24, ' 2, J#(-F=-27, 2::7. 12 T$ C$!'/'#( '( T!#"#(! 0! !)!*+ H'(% $#'*'( !) N#)=%'!' #)'*' $#"'( ?'(/ #)'*+ !!/+. T$' /!#%'/'( ' /'** ='( (/'(%. C$!'/'#( $#" ( #!#/ !!/+. 13 T$ K!#*# J'(/ F#)'*+ S+/) 9A=*'/'(; A/ 176, /$ H'(% S'( 9A(%$!# P!#%$ A)(%)(/; A/, 1<6, /$ H'(% S'( 9T$ T#)'*(#% A)(%)(/; A/ 1<, /$ H'(% S'( 9K#!(#/#># A)(%)(/; A/ 14, /$ H'(% S'( 9M#$#!#$/!# A)(%)(/; A/ 14.

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*hristian community in a part of south India formerly called Travancore.&"_{The said law laid}

down that for succession to the immovable property of the intestate is concerned, a widow or mother shall have only life interest terminable at death or on remarriage and that a daughter will be entitled to one%fourth the value of the share of the son or Rs >))) whichever is less and even to this amount she will not be entitled on intestacy, if streedhan Gwoman#s property given to her at the time of her marriageH was provided or promised to her by the intestate or in the lifetime of the intestate, either by his wife or husband or after the death of such wife or husband, by his or her heirs&>_.

These provisions were > G&=>)H <*R 3"3 challenged as unconstitutional and void on account of discrimination and being violative of right to e;uality under 0rticle &" of the *onstitution.&?

The Writ 1etition was allowed by the <upreme *ourt and the curtailment of the property rights of *hristian women in former Travancore was held to be invalid on the ground that the said state 0ct stood repealed by the subse;uent Indian <uccession 0ct of &='> which governs all Indian *hristians. owever, the provisions were not struck down as unconstitutional since the *ourt felt that it was unnecessary to go into the constitutionality issue of the provisions as they are in any case inoperable due to the overrding effect of the I<0.&3

1arsi women#s right to property5 1rima facie the property rights of the 1arsis are ;uite gender just. asically, a 1arsi widow and all her children, both sons and daughters, irrespective of their marital status, get e;ual shares in the property of the intestate while each parent, both father and mother, get half of the share of each child.&$_{owever, on a closer look there are}

anomalies5 for eBample, a widow of a predeceased son who died issueless, gets no share at all. 14 S!# 3. 15 S!# 6. 16 S!# 5. 17 S$**+ S#*?# #(% S)+# S#@(#, &C$#( =!$/ '( /$ '/'(  0)( #/! /$ 2::5 9A)(%)(/;8 #"#'*#=* #/B $//B000.*#*!"''(%'#.) 9A% ( 21.:5.2:1:;. 1< I='%. 17

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4.

Women #s # #$!#

0 ;uestionnaire was issued by the -aw *ommission to elicit the views of the public regarding giving of rights to a daughter in the 7itakshara property of a indu undivided family. This ;uestionnaire consisted of three parts having '& ;uestions. <iBty%<even respondents have replied to the ;uestionnaire.& +) respondents were from the profession of law and the rest comprise sociologists, D/s etc. 0bout the case of 8aughter becoming a Earta in the (oint Family, about half the respondents wanted the daughter to become a Earta in the (oint Family. The normal position of law does not give such a right to a women eBcept under special circumstances. If such a right is sanctioned by law then what will be the pros and cons M or why should we sanction such a right, for what reasons should a women be allowed to become the manager of a joint familyM To answer all these ;uestions we will have to look into arguments which favour the women becoming a Earta and the arguments which do not favour such a disposition.

0rguments In Favour

S 7aking her the Earta would make her position more respectable

8espite the *onstitution guaranteeing e;uality to women, there are still many discriminatory aspects in the indu law in the sphere of property rights. In our society maltreatment of a woman in her husbands family, e.g. for failing to respond to a demand of dowry, often results in her death. ut the tragedy is that there is discriminatory treatment given to her even by the members of her own natal family. Thus, if she is made the Earta of the family, then all the members of the family will respect her because of her position and women abuse will be controlled. This will enhance her self%confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.

S 0fter The indu <uccession 0mendment 0ct, '))> women are recogni:ed as coparceners. 1<

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In the indu system, ancestral property has traditionally been held by a joint indu family consisting of male coparceners. *oparcenary as seen and discussed earlier in the present work is a narrower body of persons within a joint family and consists of father, son, sons son and sons sons son. 0 coparcenary can also be of a grandfather and a grandson, or of brothers,or an uncle and nephew and so on. Thus ancestral property continues to be governed by a wholly partrilineal regime, wherein property descends only through the male line as only the male members of a joint indu family have an interest by birth in the joint or coparcenary property. <ince a woman could not be a coparcener, she was not entitled to a share in the

ancestral property by birth. 0 sons share in the property in case the father dies intestate would be in addition to the share he has on birth. ut after the amendment daughters have from birth coparcenary rights. <o they can be kartas as they are now recogni:ed as coparcenors.

S Women are fully capable of managing a business, taking up public life as well as manage large families as mothers.

There is still a reluctance to making her a Earta as the general male view is that she is incapable of managing the properties or running the business and is generally susceptible to the influence of her husband and his family, if married. This seems to be patently unfair as women are proving themselves e;ual to any task and if women are influenced by their husbands and their families, men are no less influenced by their wives and their families.

S This will end gender discrimination in 7itakshara coparcenary by including daughters in the system. <ince the girl will be the e;ual inheritor of her ancestral property, the in%laws may not insist on dowry.

S It is being suggested that the family dwelling will not be JalienatedJ without her eBpress consent. Thus will make her position stronger. <he will now become a member e;ual to that as any other male member.

S <uch an act will spread awareness and increase literacy among women as they will be involved in family affairs and they will have a say in business.

0rguments 0gainst Women ecoming Earta

S 8aughters cannot be made karta as they live away from joint family after their marriage the daughter%in%laws do not also originally belong to their in%law#s family, and therefore their possibility of becoming a karta is also ruled out.

S If women are made karta then this will lead to involvement of women in business affairs this will lead to disturbed domestic affairs.

S The women of a house%hold are usually busy with their domestic work, even if they are made karta they will act on the advice of family members and in most cases where the woman is illiterate then it will just lead to idle members of the joint family prospering at the eBpense of the hard%workingM

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S What will be the work of the male members if female members of a joint family are made karta.

S Women are incapable of managing properties or agriculture, they are incapable of running a business.

S If women are made karta will they be entitled to any kind of maintenance M these are the key ;uestions that is needed to be answered.

5. /+*"#- $e0o$ms

The possibility of female being the Earta in presence of senior male member is being ruled out. ut the ;uestion is whether in the absence of the manager, whether by prolonged journeys abroad or by dying without leaving another manager to succeed him in his

function, a female could act as a manager. Do doubt, it is true that he can act as guardian of indu 7inors by the indu 7inority and /uardianship act, &=>? but it abstains her from interfering with the eBclusive powers of managers to deal with the interests of minors in the (oint Family 1roperty.

<o, the solution lies in our religious teBt which is 8harmashastra. It says that alienation can be done by the wife of an absent, or the widow of a dead manager, of family property belonging to numerous minors, unable to enter into contractual relationships in their own persons, yet reasonable for maintaining dependants and carrying the various burdens of the family. ere, the benefit of the family is the touchestone, not the identity of the alienor. The acts of a female member acting as a manager should be positive for the benefit of the Family. <uch acts will be binding upon the manager when he returns or appears on the scene by simply coming of age as the case may be.

It is further supported by Eatyana, <mritichandrika, havasvamin and 2agnavalyka <mriti. <ome of the <anskrit teBt says %

Jsishyantevasi%dasa%stri%vaiyavrittyakarais ca yat Eutumbahetor ucchinam vodhavyam tat EutumbinaJ

The manager Gor householder, actual or eventualH is liable to accept Gor admitH all alienations made for the purposes of the Family by a pupil, apprentice, slave, wife, agent or bailiff.

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Darada says% JDa ca bharya%kritam rinam kathancit patyur abhavet 0pat kritad rite, pumsam kutumbartho hi vistarahJ

0 debt contracted by his wife never binds the husband, eBcept that incurred in a time of distress5 eBpenses for the benefit of the family fall upon males.

Cven at this objection is being raised, K0re not women declared by the sastra to be incapable, or unfit for independenceM6 Wherever a male member of the family is available, his signature should be taken rather than that of any female#s acts. ut the answer lies in the following statement. The women in ;uestion is de facto svantantra5 as soon as the husband returns or her son reaches majority she becomes partantra again, but meanwhile the responsibility rests with her, and powers should obviously be allowed to her accordingly.

The *ase -aws% In <upport The Dagpur position

In unoomanpersaud#s case which was one of the greatest cases in the history of indu -aw dealt with the powers of a widow mother as manager of property of her minor son, and was in reality a case in the conteBt of manager ship rather than guardianship properly so called. The test of the lady#s act was not who she was or in what capacity she purported to act, but whether the act was necessary or in the minor#s interest as understood by the law.

In 1andurang 8ahake v. 1andurang /orle, there the widowed mother passed a promissory note for necessity as guardian of her two minor sons. <he was a defacto manager and was held to have managerial powers, and the sons could not repudiate the debt.

In I.T *ommr. v. -akshmi Darayan, the mother as karta of the undivided family consisting of herself and her two minor sons entered into a partnership renewing thereby the partnership which her late husband had had with his brother. The court said that at 8ayabhaga law woman could be coparcener and so possibly even managers, and noted that a female might be the manager of a religious endowment. The 0ct of &=+3 has improved the status of the Widow.

The 7adras 1osition

In <eethabai v. Darasimha? there the widows claimed that they were undivided members of the coparcenery by the operation of the act of '&=+3. They objected to the appointment of a guardian for the property of the minors. The court appointed one widow guardian of one of the minor and a stranger was appointed the guardian of the other. Done of the

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widows it was held that could be a manager. To be a manager one must be a pukka coparcener, a male with a birth right and not a mere statuary interest. In Radha 0mmal v. I.Tcommissioner, 7adras a mother , guardian of minor sons , purported to eBecute a deed of partnership admitting a stranger as a power in the ancestral business. It was held that this was outside her powers and the deed could not be registered under section '?GaH of the Income TaB 0ct &=''. 0 woman could not be a manager. The argument that unoomanpersaud#s case$ allowed the act of a de%facto manager to be binding even if she were a woman, was not decided, much less eBamined. This was a weak case in 7adras decision which was in any case strictly formal and anti%Ouarin in approach.

The ombay igh *ourt

In Rakhmabai v. <itabai= that a step mother as manager of a (oint Family consisting of her co%widow and minor step%son and a minor step daughter and had the power to resist the appointment of a guardian of the property of the step%son. <he was the managing the estate and her authority should not, it was urged be undermined by such an appointment. The learned court said that the proper course was to appoint a guardian for the coparcenery 1roperty. 0 widow could not be a manager of (oint Family 1roperty. The case of <eethabai was agreed with.

The rissa igh *ourt%

In 7aguni 1adhano v. -okananidhi -ingaraj&), it was held that a mother, whose husband is alive, cannot be a manager. <he might indeed act as guardian of her son, if her husband was dead and perhaps as defacto guardian. ut as manager she had no powers whatever. -aBmi Darayan#s case was not followed. The 1rinciple that a woman could be a manager was decisively rejected.

The 1atna igh *ourt

In <heogulam v. Eishun *haudhari&&, the court denied that a mother of a minor son, during the long absence of her husband , might act as karta and incur debts for family purposes. 0ll such debts would not be binding upon the family. The case of 7aguni was

relied upon.

n the surface it might seem that 7adras has the best of it. ut a further eBamination makes us hesitate. The natural desire that deserted mothers and widows should have ample powers to look after their minor son#s interest, acting for necessity or the benefit of the Family, has eBpressed itself, as things will, in an irregular way, seeing that it was frustrated in eBpressing itself in some ;uartes in a regular way.

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6. Con"-+son

It is clear from the foregoing that though the property rights of Indian women have grown better with advance of time, they are far from totally e;ual and fair. There is much that remains in Indian women#s property rights, that can be struck down as unconstitutional. The response of the judiciary has been ambivalent. n one hand, the <upreme *ourt of India has in a number of cases held that personal laws of parties are not susceptible to fundamental rights under the *onstitution and therefore they cannot be challenged on the ground that they are in violation of fundamental rights especially

those guaranteed under 0rticles &", &> and '& of the *onstitution of India.

n the other hand, in a number of other cases the <upreme *ourt has tested personal laws on the touchstone of fundamental rights and read down the laws or interpreted them so as to make them consistent with fundamental rights. Though in these decisions the personal laws under challenge may not have been struck down, but the fact that the decisions were on merits go to show that though enactment of a uniform civil code may re;uire legislative intervention but the discriminatory aspects of personal laws can definitely be challenged as being violative of the fundamental rights of women under 0rticles &" and &> and can be struck down. Infact in one case the <upreme *ourt has held that that personal laws, to the eBtent that they are in violation of the fundamental rights, are void.

In some judgments the <upreme *ourt has eBpressly recommended to the <tate to carry out its obligation under 0rticle "" of the *onstitution and formulate a uniform civil code . There is a definite swing is towards a uniform civil code and one can see that the courts are going to play a significant role to usher it in. 0nother heartening trend is that the Indian courts are increasingly relying on international standards, derived from various international declarations and conventions. <pecifically *C80W has been referred to and relied upon by the <upreme *ourt of India in some judgments .

These line of judgments give a firm basis for the women of India to demand gender justice and e;ual rights on par with international standards. Road ahead5 0part from

the ongoing struggle for a uniform civil code in accordance with the *onstitutional framework, today the India women are fighting for rights in marital property, denied uniformly to them across all religious boundaries. There is also a significant movement in some of the hill states, towards community ownership of land by women by creating group titles and promoting group production and management of land and natural resources by landless women for joint cultivation or related farm activity. -and rights would be linked directly to residence and working on land under this approach being lobbied for under the eijing 1latform for 0ction. owever, the challenges are many5 social acceptance of women#s rights in property leads them. In a country where women continue to be property themselves the road ahead promises to be long and bumpy. 0n analysis of the inheritance rights of the *hristian, indu and 7uslim women brings forth the reality that only the *hristian women alone are deprived of the right to inherit a share of the ancestral property. This is the mere callousness of the -egislature.

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The international *onventions on women always focus on women#s inheritance rights. owever neither the community nor the *hurch would ever take any step to plug the eBisting loopholes in the Indian <uccession 0ct &='> because they are up in arms against women inheriting property. The -aw *ommission also has been enthusiastic in the reforms of indu <uccession -aw.

Do such enthusiasm is shown in reforming *hristian 1ersonal -aw. In tune with the -aw *ommissions recommendations, even the /overnment has made an effort to make reformatory laws in indu <uccession, though it is not implemented effectively. To make matters worse *hristian women are still being controlled by the *hurch through its *anon laws which ensure women#s subjugation and subordinate status. nder the <hastric -aw, a daughter on marriage ceases to be a member of the parental family, but the 0mending 0cts have changed her position, which is ;uite alien to indu patriarchal notions. Though her position as defacto manager was recogni:ed when mothers acted as guardians of their minor sons after the death of their husbands, the dejure conferment of the right eluded her.

The law commission also has rightly observed that although the indu <uccession 0mendment 0ct, '))> has conferred upon the daughter of a coparcener status but there is still a reluctance to making her a Earta. This seems to be patently unfair as women are proving themselves e;ual to any task. <ince they can act as coparcenaries then they must also be given the powers of Earta.

The shastra is clear that in the absence of senior member a junior member Gif he has reached the age of legal competenceH may incur debts for the needs of the family, and in the absence of a male member a female member may do so. The <anskritic teBts empower women to act as Earta in instances like when the husband is away or missing or the son is yet to attain majority.C;uality for women is not just a matter of e;uity for the so%called weaker seB, but a measure of the modernity of Indian society and the pragmatic nature of our civili:ation.

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(an%Feb%'3, '))3.

• <helly <aluja and <oumya <aBena, 4*hanges brought in the position of women

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