D
Da
au
ug
gh
htteerrs
s rriig
gh
ht
t tto
o p
prro
op
peert
rty
y a
an
nd
d
H
Hiin
nd
du
u S
Su
ucccceessssiio
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n
(amen
(amendmen
dment)
t) Act20
Act2005:
05: anoth
another
er blow
blow in
in harm
harmoniou
onious
s famil
familyy
relations?
relations?
Is our society moving away from family bonds and attachment with the shift Is our society moving away from family bonds and attachment with the shift from joint families to nuclear families? Is the concept of ‘family security’ from joint families to nuclear families? Is the concept of ‘family security’ becom
becoming ing irrelirrelevant with evant with the the sociesociety ty becombecoming ing more more indiindividuvidualistalistic ic andand independent? Have our law makers used their authority to create one more independent? Have our law makers used their authority to create one more dent in time tested harmonious relations woven into the fabric of Hindu dent in time tested harmonious relations woven into the fabric of Hindu families? The first dig at the relations began when daughters were made families? The first dig at the relations began when daughters were made coparceners in the family of their birth and the process of digging was coparceners in the family of their birth and the process of digging was compl
completed by the 2005 ameeted by the 2005 amendmenndment to the Hindu Succt to the Hindu Successioession Acn Act. It t. It is anis an attempt to bring about mathematical equality between brothers and sisters as attempt to bring about mathematical equality between brothers and sisters as th
thouough gh eqequaualility ty in in prpropopererty ty is is ththe e ononly ly crcrititereria ia by by whwhicich h to to jujudgdge e anan egalitarian society
egalitarian society. Our . Our lawmakers have conveniently forgotten to lawmakers have conveniently forgotten to appreciateappreciate the daughter’s role and status as a
the daughter’s role and status as a ‘wife vis a vis ‘wife vis a vis her husband’her husband’
I hope to make this point by perusing a comparison of property rights of a I hope to make this point by perusing a comparison of property rights of a woman under the Hindu Succession Act 1956(Principal Act) and the 2005 woman under the Hindu Succession Act 1956(Principal Act) and the 2005 amendment; pros and con
amendment; pros and cons of the 2005 s of the 2005 amendment; why not amendment; why not place the wifeplace the wife on an equal footi
on an equal footing with her husbang with her husband; and nd; and pondponder over some suggester over some suggestionsions for the
for the lawmakers to consider.lawmakers to consider.
B.
B. PropertProperty rights to women y rights to women under Hiunder Hindu Successiondu Succession n Act 1956(HSAct 1956(HSA)A) Vis-a
Hindu Succession Act enacted in 1956 (which incorporates the Mitakshara Hindu Succession Act enacted in 1956 (which incorporates the Mitakshara principle of propinquity i.e. preference of heirs according to the proximity of principle of propinquity i.e. preference of heirs according to the proximity of
relationship.) was commended by J.Duncan M.Derrett
relationship.) was commended by J.Duncan M.Derrett11 with his observationwith his observation
that
that the law of Successithe law of Succession has been so compreheon has been so comprehensivnsively reformeely reformed that oned that one need not fear of dying intestate. In a sense, Parliament has made a WILL for need not fear of dying intestate. In a sense, Parliament has made a WILL for everyone in HSA. A person can die intestate with confidence that no close everyone in HSA. A person can die intestate with confidence that no close relation will be left unprovided for, let alone destitute. The Parliament has relation will be left unprovided for, let alone destitute. The Parliament has considered and set out in an order of priority, the relations that in most cases considered and set out in an order of priority, the relations that in most cases are close to the deceased and whose claims have through the centuries been are close to the deceased and whose claims have through the centuries been recognized by law or in the wills of those classes which normally leave recognized by law or in the wills of those classes which normally leave wil
wills. ls. The The prepredomdominainantlntly y patpatrilrilineineal al strstructucture ure has has beebeen n recrecognognizeized d butbut considerably modified by the undeniable claims of close cognate relations. considerably modified by the undeniable claims of close cognate relations. This is not to say that law must remain static because it was praised at one This is not to say that law must remain static because it was praised at one point of time. But laws have to be realistic. Life of law is not logic but point of time. But laws have to be realistic. Life of law is not logic but experience. In this case the logic of equality has been stretched to a breaking experience. In this case the logic of equality has been stretched to a breaking point. Does the Act serve to promote the harmonious family relations or point. Does the Act serve to promote the harmonious family relations or
does it ill-serve healthy family relations ? does it ill-serve healthy family relations ?
Succession under 1956 Act Vs 2005 Act. Succession under 1956 Act Vs 2005 Act.
The chart will show that Derret was right. Women folk were given a fair The chart will show that Derret was right. Women folk were given a fair share in their paternal property. In addition their limited estate was converted share in their paternal property. In addition their limited estate was converted into an absolute estate(section 14)
into an absolute estate(section 14)
Principal Act Principal Act
I.
I. separate propertyseparate property 12
12 heirs are specified in Class I whoheirs are specified in Class I who
Under 2005 amendment: Under 2005 amendment: separate property
separate property 2 more heirs are added: 2 more heirs are added:
1
are
are preferpreferentiaential/simul/simultanltaneous eous heirsheirs.. They are:
They are:
•
• mother, widow, son,mother, widow, son, daughter,daughter,
•
• daughter of the predeceaseddaughter of the predeceased
d
daauugghhtteerr; ; ssoon n oof f tthhee predeceased daughter,
predeceased daughter,
•
• ssoon n oof f pprreeddeecceeaasseed d ssoonn,,
daugh
daughter ter of of predepredeceaseceased d sonson ,da
,daughughter ter of of the the prepredecdeceaseaseded son of
son of predeceased predeceased son, son son, son of of th
the e pprerededececeasased ed soson n of of ththee predeceased son,
predeceased son,
•
• wiwidodow w of of ththe e prprededececeaeasesedd
son, widow of the predeceased son, widow of the predeceased son of the predeceased son. son of the predeceased son.
Ex
Excecept pt ththe e fifirsrst t 4 4 otothehers rs tatake ke ththee rreepprreesseennttaattiivve e sshhaarrees s oof f tthheeiir r deceased ancestor
deceased ancestor
•
• note:note: 8 8 oouut t oof f 112 2 aarree
female heirs and one is a female heirs and one is a male heir claiming through male heir claiming through the daughter.
the daughter.
•
• Upto grand-children of theUpto grand-children of the
daugh
daughter; ter; and and greagreat-grant-grandd ch
chililddreren n oof f ththe e soson n araree
•
• soson n of of tthe he prprededececeeasaseded
d
daauugghhtteer r oof f tthhee predeceased daughter;
predeceased daughter;
•
• ddaauugghhtteer r oof f tthhee
p
prerededececeasased ed dadaugughthter er of of predeceased daughter
predeceased daughter
(ie. Upto great-grand children -of the (ie. Upto great-grand children -of the d
dauaughghtter er anand d ththe e soson n alalikikee- - aarere preferential heirs)
preferential heirs) preferential heirs)
IIII.. MMiittaakksshhaarra a ccooppaarrcceennoorryy interest
interest
•
• SonSons s aloalone ne werwere e copcoparcarceneenersrs
by birth by birth
•
• If If ththe e dedececeasased ed leleft ft bebehihindnd
female heirs specified in Class female heirs specified in Class I
I oor r mmaalle e hheeiirrs s ccllaaiimmiinngg through female heirs- property through female heirs- property dev
devolvolves es by by testestametamentantary ry or or in
inteteststatate e sucsuccecessssioion n anand d nonott b
by y susurvrvivivororshship ip (p(proroviviso so toto secion6 of the HSA)
secion6 of the HSA)
N
NOTOTE: E: fafactcts s shshow ow ththat at in in a a lalargrgee ma
majojoririty ty of of ththe e cacaseses, s, onone e or or ththee other female heir in Class I or male other female heir in Class I or male claiming through female heir would claiming through female heir would invariably be alive at the death of the invariably be alive at the death of the int
intestestateate. . TheThereforefore, re, the the proproviviso so isis larger than the rule which says that larger than the rule which says that Mi
Mitatakskshahara ra inintetererest st dedevovolvlves es byby survivorship. Hence, in most of the survivorship. Hence, in most of the cas
cases es CopCoparcarcenoenory ry proproperperty ty alsalso o isis ava
availailable ble to to claclass ss I I heiheirs rs incincludludinging
Mitakshara coparcenory interest Mitakshara coparcenory interest
•
• ddaauugghhtteerrs s aarre e aallsso o mmaaddee
coparceners by birth. coparceners by birth.
•
• Same as before but with theSame as before but with the
ad
addiditition on of of 2 2 momore re heheirirs s inin Cl
Clasass s I(I(viviz z ththe e grgreaeat-t-grgranandd children of the daughter)
the daughters. the daughters.
•
• Daughters and sons have equalDaughters and sons have equal
shares in the man’s ‘notional’ shares in the man’s ‘notional’ share of undivided interest in share of undivided interest in Coparcenory property.
Coparcenory property.
•
• In addition, son takes the shareIn addition, son takes the share
ind
indepeependendentlntly y as as copcoparcarceneener r by birth.
by birth.
E
Eg g FFaatthheer r ddiieess- - lleeaavvees s ssoon n ++ daug
daughterhter. . FatheFather’s r’s notinotional onal share share isis ½;
½; anand d soson n hahas s ½ ½ shsharare e by by bbirirthth.. After f
After father’ather’s deats death- his h- his ½ share ½ share toto b
be e ddiviviideded d bebetwtweeeen n ththe e soson n anandd daughter daughter son takes= ½ + ¼ son takes= ½ + ¼ daughter = ¼ daughter = ¼ II
III.I. AgAgriricucultlturural lal lanand-
d-It was governed by the State tenurial It was governed by the State tenurial laws and only where the State laws laws and only where the State laws were silent, HSA applied.
were silent, HSA applied.
I.
I. DwDwelelliling hng hououse (se (sesec 23c 23))
•
• Same as beforeSame as before
•
• DaDaugughthter er alalso so tatakekes s a a shshararee
in
indedepependndenentltly y by by bibirtrth. h. ShShee takes the liabilities also on par takes the liabilities also on par with the son. By implication, with the son. By implication, she takes the rights and duties she takes the rights and duties of a karta also.
of a karta also.
In the Same Eg daughter also has In the Same Eg daughter also has 1/3 share by birth. After father’s 1/3 share by birth. After father’s death- his 1/3
death- his 1/3rdrd shashare re is is divdivideidedd between the son and the daughter. between the son and the daughter. Now son and daughter take- 1/3 Now son and daughter take- 1/3
(own share) + 1/6 (own share) + 1/6 ( from father’s share) ( from father’s share)
Agricultural land Agricultural
land--It is now subject to the succession It is now subject to the succession und
under ther the e ameamendndmenment and fet and femalmaleses have a share in it..
•
• A female heir A female heir canncannot ot claimclaim
partition
partition oof f tthhe e ddwweelllliinngg ho
housuse e whwhololly ly ococcucupipied ed byby members of the family of the members of the family of the deceased until the male heirs deceased until the male heirs choose to divide their shares choose to divide their shares
•
• UnUnmamarrrrieied d dadaugughthter er hahas s aa
rriigghht t oof f rreessiiddeennccee. . BBuutt married daughter has a right married daughter has a right of residence only if widowed, of residence only if widowed, separated or deserted.
separated or deserted.
NOTE: it was a fair provision and NOTE: it was a fair provision and
alive to real life contingencies alive to real life contingencies V
V.. WiWidowdows s reremamarryrryinging W
Wididow ow of of ththe e prprededececeaeasesed d soson,n, widow of the predeceased son of widow of the predeceased son of the predeceased son and the widow the predeceased son and the widow of the brother are not entitled to of the brother are not entitled to inherit if she has remarried on the inherit if she has remarried on the date the succession opens.
date the succession opens. N
NOOTTEE: : tthhe e pprrooppeerrtty y aallrreeaaddyy in
inheheririteted d iis s nonot t ddiviveeststed ed if if shshee m
maarrrriiees s aaftfteer r tthhe e ddeeaatth h of of tthhee de
dececeasased ed bebecacaususe e lalaw w dodoes es nonott fa
favovour ur didiveveststining g of of ththe e prpropoperertyty once vested.
once vested.
Dwelling house Dwelling house
•
• Section 23 deleted. Daughters-Section 23 deleted.
Daughters- both married and unmarried both married and unmarried
have the same right to reside in have the same right to reside in and claim partition of the
and claim partition of the parental dwelling house. The parental dwelling house. The right is not circumscribed by right is not circumscribed by any conditions or
any conditions or
contingencies as before. contingencies as before.
Widows remarrying Widows remarrying
They can inherit even if they have They can inherit even if they have rreemmaarrrriieedd. . ((ii..ee. . eevveen n aafftteer r est
establablishishing ing a a new new matmatrimorimonianiall union in a another family- may be union in a another family- may be a total stranger family- she has a a total stranger family- she has a share in her former father in law share in her former father in law /grand father in law’s property .!!! /grand father in law’s property .!!!
The net result of Hindu Succession Act and the other laws
The net result of Hindu Succession Act and the other laws is that:is that:
•
• the liability of the parents towards daughter extends well beyond her the liability of the parents towards daughter extends well beyond her
marriage. The daughter and in her absence- her children, her marriage. The daughter and in her absence- her children, her grand-ch
chilildrdren en anand d grgreaeat t grgranand d chchilildrdrenen- - arare e enentititltled ed to to a a shsharare e in in ththee separate and Coparcenory property of her f
separate and Coparcenory property of her fatherather. They are entitled to a. They are entitled to a sh
share are in in ththe e agagriricucultlturural al lalandnds; s; ththe e dadaugughthterers- s- boboth th mamarrirried ed anandd unmarried are entitled to ask for a partition, right of residence in the unmarried are entitled to ask for a partition, right of residence in the dwelling house occupied by her brothers even when the brothers are dwelling house occupied by her brothers even when the brothers are living jointly and without any contingencies like widowhood,divorce living jointly and without any contingencies like widowhood,divorce etc.
etc.
•
• UndUnder er the the HinHindu Adoptdu Adoption ion and and MaiMaintentenannance Act- ce Act- the the parparentents s areare
primarily liable to maintain the unmarried daughter until minority and primarily liable to maintain the unmarried daughter until minority and beyond minority – to the extent she is unable to maintain out of her beyond minority – to the extent she is unable to maintain out of her own earnings. Maintenance under the Act includes food, clothing, own earnings. Maintenance under the Act includes food, clothing, residence, education, medical treatment, and reasonable expenses of residence, education, medical treatment, and reasonable expenses of marriage.
marriage.
•
• In addition, under circumstances specified under the Hindu AdoptionIn addition, under circumstances specified under the Hindu Adoption
and Maintenance Act
and Maintenance Act22- if she becomes a widow, she is a ‘dependant’- if she becomes a widow, she is a ‘dependant’ and her maintenance amount forms a charge on the assets inherited by and her maintenance amount forms a charge on the assets inherited by the heirs of her
the heirs of her father or mother.father or mother.
More often than not- with or without any State made law- the parents More often than not- with or without any State made law- the parents have been discharging their parental obligations out of sheer love and have been discharging their parental obligations out of sheer love and concern and empathy in case of the daughter in distress. Things done concern and empathy in case of the daughter in distress. Things done voluntarily are more enduring.
voluntarily are more enduring.
2
I submit- the liability of the parents under the present system has been I submit- the liability of the parents under the present system has been extended much beyond reasonable and natural limits, having regard to the extended much beyond reasonable and natural limits, having regard to the actual facts including the fact that after marriage the daughter passes over to actual facts including the fact that after marriage the daughter passes over to the husband’
the husband’s family and the s family and the husband is under a legal and a husband is under a legal and a moral obligationmoral obligation to maintain her.
to maintain her.
C.
C. PrPros and Conos and Cons of the 200s of the 2005 amendm5 amendmentent33
The question is : how far are the laws conducive to the healthy survival of The question is : how far are the laws conducive to the healthy survival of the families as an
the families as an institution? My submission on the matter is as institution? My submission on the matter is as under:under:
The Act disturbs the finely integrated emotional and sentimental threads The Act disturbs the finely integrated emotional and sentimental threads woven into Hindu
woven into Hindu families. families. Existing family realities Existing family realities and the existing healtand the existing healthyhy attitude of the Hindu families
attitude of the Hindu families towards the daughters are not towards the daughters are not appreciated. Theappreciated. The parents take up full responsibility of their daughters until they are settled in parents take up full responsibility of their daughters until they are settled in life, not only as a duty but also out of love and affection. Given the means at life, not only as a duty but also out of love and affection. Given the means at their disposal, by and large, sons and daughters are treated equally given the their disposal, by and large, sons and daughters are treated equally given the growing egalitarian concept that has developed in the country. If the parents growing egalitarian concept that has developed in the country. If the parents ar
are e ddeaeadd, , iin n tthe he llarargge e mamajojoriritty y of of ththe e cacaseses s tthe he bbrorotthehers rs ttakake e fufullll res
respoponsnsibibililitity y of of ththeieir r sisiststerers,s,- - at at titimemes s eveven en by by inincucurrirring ng loloanans s anandd postponing their own marriages. This has been the culture of the Hindu postponing their own marriages. This has been the culture of the Hindu
so
socicietety- y- gigiveven n ththe e sasacrcred ed teteacachihingngs s hahandnded ed ovover er to to us us dodown wn seseveverarall centuries. The fabric ought not to be disturbed. Even after marriage, during centuries. The fabric ought not to be disturbed. Even after marriage, during moments of crisis she turns to her parents and brothers for aid and advice. It moments of crisis she turns to her parents and brothers for aid and advice. It is in the face of thes
is in the face of these facts thae facts that the law conct the law concernerning ing proproperperty righty rights tots to fem
femalales es hahas s bebeen en ameamendnded ed in in an an atattetempmpt t to to brbrining g ababouout t eqequaualility ty wiwithth
3
3Also see ‘bill on property rights to Also see ‘bill on property rights to daughters :the forgotten wife’ daughters :the forgotten wife’ :Indian Law Reports 1992(Kar) JS at p.:Indian Law Reports 1992(Kar) JS at p.
21 by the same author 21 by the same author
ma
maththememataticical al acaccucuraracy cy wiwiththouout t tatakiking ng ininto to coconsnsididereratatioion n ththe e exexisistitingng realities. There are some equations which may not fit into the mathematical realities. There are some equations which may not fit into the mathematical formula of equality but have stood the test of time, as being based on the formula of equality but have stood the test of time, as being based on the solid foundation
solid foundation of love/afof love/affection, care fection, care and concern.and concern.
One argument in support of the amendments may be- that she too is required One argument in support of the amendments may be- that she too is required to take liabilities on par with the son. But then, let us be true to the issue-- Is to take liabilities on par with the son. But then, let us be true to the issue-- Is she practically in a position to discharge and share all the responsibilities she practically in a position to discharge and share all the responsibilities that her brother may take up? Or will she end up taking the benefit and that her brother may take up? Or will she end up taking the benefit and un
unaablble e to to ddisiscchaharrge ge ththe e buburdrdeenn? ? ThThe e ququesestition on mmusust t be be ananswsweereredd dispassionately and objectively and not just with a feministic bent of mind. dispassionately and objectively and not just with a feministic bent of mind.
Real life situations show that after her marriage –she moves out to the place Real life situations show that after her marriage –she moves out to the place of her husband and her matrimonial home becomes the center of all her of her husband and her matrimonial home becomes the center of all her attention/ affectio
attention/ affection, n, care and concern. This icare and concern. This is not because she does not haves not because she does not have any feelings for her maiden home but because circumstances are such that any feelings for her maiden home but because circumstances are such that she has to put the convenience etc of her matrimonial family on the top of she has to put the convenience etc of her matrimonial family on the top of the priority list. She gets so engrossed with her own family and children that the priority list. She gets so engrossed with her own family and children that - she starts identifying herself more with the matrimonial family than with - she starts identifying herself more with the matrimonial family than with the family of her birth as a matter of course. She even compromises her the family of her birth as a matter of course. She even compromises her career ambitions to make the matrimonial home a comfortable place for her career ambitions to make the matrimonial home a comfortable place for her husband and children. No one need be blamed for it. Home management is a husband and children. No one need be blamed for it. Home management is a laudable job in deed,- in a nut shell- it means shaping and tuning the future laudable job in deed,- in a nut shell- it means shaping and tuning the future ge
geneneraratition on whwho o arare e ththe e cucuststododiaians ns of of ththe e fufututure re gegeneneraratitionon- - ththououghgh unfortunately it is yet to get its rightful place. It is a system that has stood unfortunately it is yet to get its rightful place. It is a system that has stood the test of time. But under these circumstances – is she in a position to take the test of time. But under these circumstances – is she in a position to take up the liabilities towards her parents also? The term
a broader meaning to include not only the monetary liabilities but also the a broader meaning to include not only the monetary liabilities but also the responsibility of looking to the physical needs of the parents etc in the responsibility of looking to the physical needs of the parents etc in the maiden home. It is not just sending a monthly cheque
maiden home. It is not just sending a monthly cheque to her parents. to her parents. A A stagestage is reached where the parents need physical caring and physical nearness is reached where the parents need physical caring and physical nearness more than just money. Howsoever much she may desire, and even with the more than just money. Howsoever much she may desire, and even with the most broad-min
most broad-minded and ded and underunderstandstanding husband and ing husband and in-lain-laws, she ws, she woulwould d notnot be in a position to discharge this liability. It is ultimately the sons and the be in a position to discharge this liability. It is ultimately the sons and the daughter-in-laws who are to take care of her parents. The parents also would daughter-in-laws who are to take care of her parents. The parents also would li
like ke to to be be tatakeken n cacare re of of by by ththe e soson n rarathther er ththan an ththe e mamarrrrieied d dadaugughthterer.. Somewhere deep inside, they would feel embarrassed if circumstances arise Somewhere deep inside, they would feel embarrassed if circumstances arise where they have to rely on the married daughter during their old age days. where they have to rely on the married daughter during their old age days. This is the psyche deeply ingrained due to what ever
This is the psyche deeply ingrained due to what ever reasons.reasons.
Speaking of monetary liability, it would be unfair to burden her with the Speaking of monetary liability, it would be unfair to burden her with the liabilities in her maiden family that have been incurred after her marriage, liabilities in her maiden family that have been incurred after her marriage, without her knowledge. At the same time it would be impracticable and without her knowledge. At the same time it would be impracticable and unfair to expect the father and the brothers
unfair to expect the father and the brothers to consult her and get her consentto consult her and get her consent for every transaction involving family liability – which are matters which for every transaction involving family liability – which are matters which any family would like to hold close to
any family would like to hold close to its chest.its chest.
Suppose the father dies leaving only liabilities and debts of the nature of Suppose the father dies leaving only liabilities and debts of the nature of pious obligations but no assets- is she still to share the liabilities along with pious obligations but no assets- is she still to share the liabilities along with
her brother? Can the creditors proceed
her brother? Can the creditors proceed against her also for recovery?against her also for recovery?
All
Allottotting ing an an equequal al shashare re in in immimmovaovable ble proproperperty– ty– has has its its own problown problemsems specia
specially in an average famillly in an average family with moderay with moderate means. te means. When she moveWhen she moves outs out to live with her husband- she becomes an absentee landlord; or she may be to live with her husband- she becomes an absentee landlord; or she may be
in
induduceced d or or foforcrced ed to to dedemamand nd a a papartrtititioion n anand d sesell ll heher r shsharare. e. GeGeneneralrallyly p
parartititition on tatakekes s plplacace e afafteter r ththe e dedeatath h of of ththe e fafaththerer; ; shshe e mamay y bebecocomeme instrumental – willing or unwilling- in splitting the family bonds- for which instrumental – willing or unwilling- in splitting the family bonds- for which somewhere deep in her mind she would be repenting for her helplessness; somewhere deep in her mind she would be repenting for her helplessness; possibilities of she being caught up in tormenting moral and emotional possibilities of she being caught up in tormenting moral and emotional dilemmas cannot be ruled out. Given the social set up in the Hindu families dilemmas cannot be ruled out. Given the social set up in the Hindu families –she would be hesitant to go against the wishes of her husband. On one –she would be hesitant to go against the wishes of her husband. On one hand- there may be a husband -coaxing /forcing or prevailing on her to hand- there may be a husband -coaxing /forcing or prevailing on her to demand her share in her parents’ property – and on the other hand- her own demand her share in her parents’ property – and on the other hand- her own reali
realizatiozation n abouabout t the love and the love and concconcern with ern with whicwhich h she has she has been broughbeen brought t upup by them; the sleepless nights that may have been spent by them during her by them; the sleepless nights that may have been spent by them during her moments of discomfort- may tear her apart. Possibilities of more female moments of discomfort- may tear her apart. Possibilities of more female infanticide/ or suicides/ and more litigations cannot be ruled out.
infanticide/ or suicides/ and more litigations cannot be ruled out.
Equa
Equal l righrights ts in in agricagricultuultural ral landlandss givgiven en to to daudaughtghters ers undunder er thethe 20052005 amendment
amendment will lead to fragmentation of the lands which will reduce thewill lead to fragmentation of the lands which will reduce the optimum utility of the land and also make life tough for the families with optimum utility of the land and also make life tough for the families with small holdings. The family of her birth could fall in disarray by such an small holdings. The family of her birth could fall in disarray by such an action. By and large, agricultural holdings in India are not as huge as to action. By and large, agricultural holdings in India are not as huge as to accommodate a share in it for every heir. Mainly they are a modest means of accommodate a share in it for every heir. Mainly they are a modest means of livelihood.
livelihood.
The rights pertaining to
The rights pertaining to dwelling housesdwelling houses cannot simply be comprehended.cannot simply be comprehended. Right
Rights in the ds in the dwelliwelling houng houses ses along walong with thith the right ie right in agricn agriculturultural landal lands s isis the height of injustice to the family of her birth. No wonder if this right is the height of injustice to the family of her birth. No wonder if this right is traded for monetary gain.
This kind of amendment would probably fit in a matriarchal family where This kind of amendment would probably fit in a matriarchal family where sons-in-law moves into his wife’s family and the daughter continues to stay sons-in-law moves into his wife’s family and the daughter continues to stay with her parents – in which case her brother would move on to the family of with her parents – in which case her brother would move on to the family of his wife and together they would look after the needs etc of her family and his wife and together they would look after the needs etc of her family and also inherit their estate. India, primarily has a patriarchal set-up where law also inherit their estate. India, primarily has a patriarchal set-up where law under consideration would do more injustice than justice.
under consideration would do more injustice than justice.
D.
D. Place wife Place wife on an equon an equal footing al footing as the huas the husbandsband
The extent of the wife’s identification with her husband’s family would The extent of the wife’s identification with her husband’s family would justify placing the wife on an equal footing as that of her husband. Let us try justify placing the wife on an equal footing as that of her husband. Let us try to weigh her property rights as a wife versus her contributions towards to weigh her property rights as a wife versus her contributions towards ‘making that home
‘making that home a worthy place to a worthy place to live.’ live.’ The non-monetary contribution of The non-monetary contribution of the
the wifwife e liklike e the home-the home-makmaking ing efefforforts, ts, the the sacsacrifirifices ces madmade e by by her her liklikee foregoing career opportunities or carrying on the career in a low profile, her foregoing career opportunities or carrying on the career in a low profile, her oppor
opportunitunity cost of time etc must be recognty cost of time etc must be recognized and proized and protectetected. d. UndeUnder ther the pr
preseesent nt leglegal al syssystemtem, , durduring ing the the lifelifetime of time of her her hushusbanband, d, her her monmonetaetaryry security lies in the maintenance provisions under the Hindu Adoption and security lies in the maintenance provisions under the Hindu Adoption and Maintenance A
Maintenance Act; the Criminal ct; the Criminal Procedure Code and the Procedure Code and the Hindu Marriage Act.Hindu Marriage Act. In addition we have our testamentary laws under which an unscrupulous In addition we have our testamentary laws under which an unscrupulous husband can drive his illiterate wife and the minor children penniless by husband can drive his illiterate wife and the minor children penniless by making a will of his self-acquired property and his share in the Mitakshara making a will of his self-acquired property and his share in the Mitakshara Property (sec 30 of the HSA ) in favour of a total stranger. {Here again her Property (sec 30 of the HSA ) in favour of a total stranger. {Here again her father is one of the persons who comes to her rescue under the Hindu father is one of the persons who comes to her rescue under the Hindu Adoption and Maintenance Act under which a widowed daughter is his Adoption and Maintenance Act under which a widowed daughter is his dep
dependendant ant undunder er spespecifcified ied conconditditionions.} A s.} A trutruly ly insinsufufficficienient t carcaring ing for for aa perso
person n who dedicawho dedicates her tes her whole life for whole life for that family (minus the that family (minus the initinitial yearsial years before marriage). This is because our legalistic concept of title to property before marriage). This is because our legalistic concept of title to property
obscures the fact that man and woman are equal partners in marriage and obscures the fact that man and woman are equal partners in marriage and have contributed together monetarily or non-monetarily to family welfare. have contributed together monetarily or non-monetarily to family welfare. As of now, she has a share as a ‘widow’. But then, which woman would As of now, she has a share as a ‘widow’. But then, which woman would aspire for ‘widowhood’ to obtain a share in the husband’s property? What aspire for ‘widowhood’ to obtain a share in the husband’s property? What sh
she e neneeeds ds iis s a a shsharare e as as a a ‘w‘wifife’ e’ by by rerecocoggninizizinng g hher er nnonon-m-mononeetataryry contribution towards home-making specially in cases where she may not be contribution towards home-making specially in cases where she may not be a working woman.
a working woman.
There can be
There can be no two opinion on the point that equals must no two opinion on the point that equals must be treated equallybe treated equally.. Until marriage– daughter and the brother must be treated on par as regards Until marriage– daughter and the brother must be treated on par as regards all
all matmatterters s liklike- e- foofood, d, cloclothithing, ng, shesheltelter, r, edueducatcationion, , marmarriariage ge expexpensenses es or or pe
perforformanrmance of ce of marmarriariage in ge in a a manmanner befiner befittitting the family stang the family standinding andng and status and means. Marriage brings about a change in the status and the status and means. Marriage brings about a change in the status and the liability shifts over to
liability shifts over to the husband from the husband from the father. the father. As Manu puts As Manu puts it:it:
Father is to protect the daughter in childhood; husband in her youth and the Father is to protect the daughter in childhood; husband in her youth and the son in her old age. The saptapadi speaks of caring for each other treating son in her old age. The saptapadi speaks of caring for each other treating ea
each ch ototheher r as as ‘s‘sakakhaha-fr-frieiendnd’. ’. UnUndeder r ththe e prpresesenent t lelegagal l sysyststem em alalso so ththee hus
husbanband d is is undunder er priprimarmary y and and perpersonsonal al oblobligaigatiotion n to to maimaintantain in his his wifwife.e. Ho
Howewevever r shshe e is is ththe e ‘fo‘forgrgototteten n wiwifefe’ ’ as as fafar r as as heher r prpropopererty ty ririghghts ts araree concerned. The Act and the Amendment under consideration is not alive to concerned. The Act and the Amendment under consideration is not alive to the real life situations. This is the
the real life situations. This is the ultimate consequence.ultimate consequence.
In
In Conclusion-Conclusion- one obvious reality is that after marriage – either the wifeone obvious reality is that after marriage – either the wife must move into the husband’s family as in the patriarchal system or the must move into the husband’s family as in the patriarchal system or the husband must move into the wife’s family as under the matriarchal system. husband must move into the wife’s family as under the matriarchal system. Following are some of the suggestions offered for the patriarchal system Following are some of the suggestions offered for the patriarchal system which is prevalent in our country:
•
• Accept the fact that there is a limit up to which a sister can be treatedAccept the fact that there is a limit up to which a sister can be treated
on par with the brother. on par with the brother.
•
• After marriage treat husband and wife on an equal footing. PropertyAfter marriage treat husband and wife on an equal footing. Property
ea
earnrned ed duduriring ng ththe e susubsbsisistetencnce e of of mamarrirriagage e be be reregagardrded ed as as jojoinintt pr
propeoperty rty subsubjecject t to to maimaintentenannance ce rigrights hts of of the the depdependendantants. s. Let Let thethe legalistic concept of title not come in the way of recognition that both legalistic concept of title not come in the way of recognition that both are equal partners in home making e
are equal partners in home making effortsfforts
•
• Specify a limit beyond which property cannot be bequeathed away inSpecify a limit beyond which property cannot be bequeathed away in
order to provide for the
order to provide for the heirs as under the Mohammadan law.heirs as under the Mohammadan law.
•
• If the present 2005 amendment is to continue in its present form- inIf the present 2005 amendment is to continue in its present form- in
the inte
the interest of the harmonrest of the harmonious famiious family relatily relation- on- link the inlink the inheritheritanceance rights in agricultural land - to the quantum of property held by the rights in agricultural land - to the quantum of property held by the de
dececeasased ed at at ththe e titime me of of hihis s dedeatath h anand d heher r owown n inincocome me anand d heher r husband’
husband’s s income and income and property property worth.worth.
•
• Realize and promote the view that the best form of security is oneRealize and promote the view that the best form of security is one
which comes from earnings out of self exertion. Everything else is which comes from earnings out of self exertion. Everything else is a bonus. So equip the females by enhanced education facilities a bonus. So equip the females by enhanced education facilities and the like
and the like
In fact a threadbare discussion on the issues involved would have served the In fact a threadbare discussion on the issues involved would have served the cause of the
Gist Gist Daug
Daughters hters righright to t to propproperty erty and and HindHindu Suu Successccession (ion (amenamendmendment) t) Act Act 2005:
2005: another another blow blow in in harmonious harmonious family family relationsrelations
Is our society moving away from family bonds and attachment with the shift Is our society moving away from family bonds and attachment with the shift from
from joijoint nt famifamilielies s to to nucnuclealear r famfamiliilies? es? Is Is the the neeneed d for for famifamily ly secsecuriurityty lessening with the society becoming more individualistic and independent? lessening with the society becoming more individualistic and independent? Have our la
Have our law makers givw makers given anoten another blow her blow at the time teat the time tested hasted harmoniormoniousus rel
relatatioions ns wowoveven n ininto to ththe e fafabrbric ic of of HiHindndu u fafamimililieses? ? ThThe e fifirsrst t didig g at at ththee relations began when daughters were made coparceners in the family of their relations began when daughters were made coparceners in the family of their birth and the process of digging was completed by the 2005 amendment to birth and the process of digging was completed by the 2005 amendment to the Hindu Succession Act. The amendment is an attempt to bring about the Hindu Succession Act. The amendment is an attempt to bring about mathematical equality between brothers and sisters as though equality in mathematical equality between brothers and sisters as though equality in prope
property is the only criterrty is the only criteria by which to judge an egaliia by which to judge an egalitariatarian societyn society. . Our Our lawmakers have conveniently forgotten to appreciate the daughter’s role and lawmakers have conveniently forgotten to appreciate the daughter’s role and her status as a ‘wife vis a vis her husband’
her status as a ‘wife vis a vis her husband’
Hin
Hindu Succdu Successiession Acon Act t enaenactected d in 1956 in 1956 was commwas commendended by ed by J.DJ.Duncuncanan M.Derrett
M.Derrett44 with hiwith his observas observation thation that t the “lathe “law of Successiw of Succession has beeon has been son so
comprehensively reformed that one need not fear of dying intestate. In a comprehensively reformed that one need not fear of dying intestate. In a sense, Parliament has made a WILL for everyone in HSA. A person can die sense, Parliament has made a WILL for everyone in HSA. A person can die intestate with confidence that no close relation will be left unprovided for, intestate with confidence that no close relation will be left unprovided for, let alone destitute. The Parliament has considered and set out in an order of let alone destitute. The Parliament has considered and set out in an order of priority, the relations that in most cases are close to the deceased and whose priority, the relations that in most cases are close to the deceased and whose claims have through the centuries been recognized by law or in the wills of claims have through the centuries been recognized by law or in the wills of tho
those se claclasses sses whiwhich ch nornormalmally ly lealeave ve wilwills. ls. The The prepredomdominainantlntly y patpatrilrilineinealal
4
structure has been recognized but considerably modified by the undeniable structure has been recognized but considerably modified by the undeniable claims of close cognate relations.”
claims of close cognate relations.”
This is not to say that law must remain static because it was praised at one This is not to say that law must remain static because it was praised at one point of time. But laws have to be realistic. Life of law is not logic but point of time. But laws have to be realistic. Life of law is not logic but experience. In this case the logic of equality has been stretched to a breaking experience. In this case the logic of equality has been stretched to a breaking point. Does the Act serve to promote the harmonious family relations or point. Does the Act serve to promote the harmonious family relations or
doe
does it booms it boomranrang? g? Are thAre the liae liabilbilitiities of hees of her parer parents exnts extentended bded beyoeyondnd reasonable limits? Is the daughter in a practical position to discharge her reasonable limits? Is the daughter in a practical position to discharge her li
liababililititieies s totowawardrds s heher r paparenrents ts afafteter r heher r mamarrirriagage? e? DoDoes es ththis is kikind nd of of amendment fit into the patriarchial system prevalent in India?
amendment fit into the patriarchial system prevalent in India? For more click here