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Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

ABSTRACT
The paper deals with the efficacy of relevant legislation in enlarging the right of the Hindu women in ancestral property. The author has dealt Indian legislation dealing with the right of property i.e. Hindu Womens Right to Property Act, 1937 and The Hindu Succession Act, 1956 including The Hindu Succession (Amendment) Act 2005. At the outset of the paper, author has introduces the topic to get the reader prior situation before codification of any such legislation. Then, paper deals with the Hindu womens Right to Property Act, 1937 with its basic feature and its loopholes which led to the enactment of the Hindu Succession Act, 1956. The paper briefly describes this legislation with its loopholes and then deals with the 2005 Amendment Act which finally boosted the womens right to property and brought male and female on equal footage. Lastly, paper deals with the critics of the amendment.

Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

Introduction
From the ancient times, all laws have been exclusively for the benefit of men and women have been treated as subservient and dependent on male support. Theoretically, though the women could hold property but in practice, its quantum in comparison to mens holding, her right to dispose of the property was limited. Indian women have very limited rights over the property as compared to the women of developed countries which are very important for the freedom and development of a human being. The Hindu Womens Right to Property Act, 1937 was one of the most important enactments that brought about changes to give better rights to women, before it the property of women comprised Stridhan and non-stridhan. The said Act was the outcome of discontent expressed by a sizeable section of society against the unsatisfactory affairs of the womens rights to property. Even the said Act did not give an absolute right to women. The Hindu Succession Act, 1956 introduced many reforms and it abolished completely the essential principle that runs through the estate inherited by a female heir, that she takes only a limited estate. It has codified the law which was derived from the ancient scriptures and laid down a uniform and comprehensive system of inheritance. But, The Hindu Succession (Amendment) Act, 2005 confers for the first time the right to daughter of a coparcener to become coparcener by birth in her own right as son and declared that the daughter shall have the same right in the coparcenary as she would have if she had been the son.

Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

Hindu Womens Right to Property Act, 1937 The Hindu Womens Right to Property act was passed in 1937 with prospective in nature1 and applied to property other than agricultural property2 and impartible estates, which either under a customs or otherwise, went to a single heir. It applied to Hindus governed by Mitakshara, Dayabhaga and customary law of Punjab. Section of the Act expressly repealed the Pre-Act Customs and rules of laws that were contrary to the provisions of the act. The Act governed the devolution of the property of a male Hindu only and not the property of female.3 Consequently, the property of a female Hindu developed according to the rules of Hindu Law, which provided a distinction between inheritance to stridhan and nonstridhan. This widened the gap between succession to the property of a female and a male. It also affected both the separate property as well as the undivided share of a male Hindu in coparcenary property. This Act was a progressive step to the recognition of the right of a widow over the coparcenary property because prior to 1937 act, the widow succeeded only on failure of his male issue. Yet, this act was totally silent about the devolution of her estate after her death. The Bare clause of the act provides widow was entitled the same interest that the deceased husband had. It has created confusion with respect to her status, quantum of the interest and also the mode of the devolution of this interest in her favour as her husband had acquired an interest by birth in that property, while widow could get it only on his death. Loopholes in the Act There were some perplexing questions that were left unanswered by the act.

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Krishtappa v. Ananta Kalappa Jarathakhane AIR 2001 Kant 322 Kotaya v. Annapurnamma (1945) Mad 777 3 Sham Lal v. Amar Nath AIR 1970 SC 1643

Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

1. Widow took the deceased husbands interest, did acquire the status of coparcener, had right to claim partition but was not a coparcener4. She will remain as a member of Hindu Joint family.5 2. There was ambiguity regarding whether widow received the share of her husband by inheritance or through survivorship, 6 there was always conflict of judicial opinion, but the predominant and perhaps the appropriate view was that she took it by inheritance as being a female and non-coparcener. 3. This act was totally silent over the right to unchaste widow from inheriting the property of her deceased husband.

The Hindu Succession Act, 1956 The new 1956 Act has ended various confusion, ambiguity and controversy regarding the exact share that the widow took on the death of her husband as an undivided member in Mitakshara coparcenary. Now, she could inherit the separate property of her husband as his primary heir, and the quantum of her share and the nature of her estate are absolutely identical to that of the son. Women became the absolute owner under Section-14 of the Hindu Succession Act, 1956, with the basic objective: 1. To remove the disability of a female to acquire and hold property as an absolute owner. 2. To convert the right of woman in any estate held by her as a limited owner into an absolute owner.

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Rosamma v. Chenchiah (1943) 2 Mad LJ 172 Seethamma v. Veeranna AIR 1950 Mad 785 6 Natarajan v. Perumal (1942) 2 Mad LJ 668

Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

The provision was retrospective in the sense that it enlarged the limit of the estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force. Any property acquired under the 1937 Act held in capacity of a limited owner was now converted to her absolute estate. The Hindu Succession Act, 1956 abrogates all the rules of the law of succession hitherto applicable to Hindus whether by virtue of any text or rule of Hindu law or any custom or usage having the force of laws in respect of all matters dealt with in the Act. Therefore, no woman can be denied property rights on the basis of any custom, usage or text and the Act reformed the personal law and gave woman greater property rights. The daughters were also granted property rights in their fathers estate. It is interesting to note that except section 14(1), there is no other provision in the entire Hindu succession act, 1956 which specifies the nature of interest that a Hindu woman takes in the property that she may inherit under the Act. Loopholes in the Act However Section-6 of the Act clearly states that in the case of joint family property, known as coparcenary property, the interest of a male Hindu, on his death, would devolve by survivorship upon the surviving member of the coparcenary and not in accordance with the above said provision. Coparcenary consists of grandfather, father, son and sons son. However, if the deceased had left him surviving a female relative (daughter, widow, mother, daughter of a predeceased son, widow of a predeceased son, daughter of a predeceased son of a predeceased son, widow of a predeceased son of a predeceased son) the interest of the deceased in the coparcenary shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. For instance, A (who had an interest in the coparcenary property) dies leaving behind him his 2 sons B & C and a daughter D. When he was alive, B & C (sons) were members of the coparcenary and D

Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

(daughter) was not a member of the coparcenary. On the death of A, his daughter D will get only 1/3 share in the 1/3 share of her father in the coparcenary property. It means the sons B & C will get 1/3 +1/9 each whereas the daughter D will get only 1/9 share in the property. Under Section 23 of the Hindu Succession Act, 1956, where a Hindu intestate has left surviving him or her both male and female heirs and his or her property includes a dwelling house, wholly occupied by members of his or her family, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective share therein; but the female heir shall be entitled to a right of residence therein; Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by, or has separated from, her husband or is a widow. Hence, the provisions of the Hindu Succession Act, 1956 have also not given absolute power to female and discriminate the right of the property among male and female. Therefore, if one says the Hindu Succession Act, 1956 remain the weapon to a man to deprive a woman of the rights as she earlier had under certain schools of Hindu Law. To remove the said gender discriminatory provisions the Hindu Succession (Amendment) Act, 2005 was enacted and came into force on 9th September, 2005. The Hindu Succession (Amendment) Act, 2005 This is the product of 174th Report of the Law Commission of India on "Property Rights of Women: Proposed Reform under the Hindu Law ", intended to achieve the goal of removal of discrimination among the male and female heirs relating to intestate succession amongst Hindus. The Act brought about the revolutionary changes in the Old Hindu Law.

Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

Omission of Section 4(2)7 of the HSA, 1956 It has deleted a major gender discriminatory clause - Section 4 (2) of HSA, 1956, which has made women's inheritance rights in agricultural land equal to men's. Section 4(2) excluded from the purview of the HSA significant interests in agricultural land, the inheritance of which was subject to the succession rules specified in state-level tendril laws. Especially, in the north-western states, these laws were highly gender unequal and gave primacy to male lineal descendants in the male line of descent. Women came very low in the succession order and got only a limited estate. The new legislation brings male and female rights in agricultural land on par for all states, overriding any inconsistent state laws and conferring equal rights in the matter of succession and inheritance.8 This can potentially benefit millions of women dependent on agriculture for survival.

Substitution of Section 6 Section 6 substituted by the Hindu Succession (Amendment) Act, 2005 has introduced revolutionary changes in the concept of Mitakshara coparcenary. It has removed the discrimination between the son and daughter given equal coparcenary rights to male and female under Hindu Mitakshara Joint family. It is prospective not retrospective.9 Section 6(1) confers for the first time the right of a daughter of a coparcener to become coparcener by birth in her own right as son. It has declared that the daughter shall have the same right in the coparcenary as she would have if she had been the son and subject to
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(2) For the removal of doubts, it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for fragmentation of agricultural holding or the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings. 8 G. Sekar v. Geetha (2009) 6 SCC 99 9 Prabhat Chnadra Pattanayak v. sarat Chandra Pattanayak 2008 (66) AIC (Ori)

Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

the same liabilities in respect of the said coparcenary property as that of the son. Section 6(2), declares that any property to which Hindu female becomes entitled by virtue of section 6(1), she is capable of being disposed by testamentary disposition as daughter became the coparcener to the Mitakshara Hindu joint family. Section 6(3), provides that When a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place, and,a) the daughter is allotted the same share as is allotted to a son; b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; and c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Under Sastrik Hindu Law, the son, grandson or great-garndson had the pious obligation to repay the antecedent debt of the father, grandfather and great-grandfather. As Section 6(1), confers upon the daughter, the same coparcenary right under the Mitakshara Law as that of a son, then the principle of pious obligation of the son or grandson or great-grandson to repay the antecedent debt of the father, grandfather or great-grandfather cannot subsist. Such antecedent of father, grandfather or great-grandfather is now repaid by the son,

Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

grandson, great-grandson and the daughter, granddaughter, greatgranddaughter with the effect from enforcement of amended Act, 2005. Repeal of Section 23 In view of the section 23, any female heir of Hindu who died leaving class I heirs including female has been debarred from partitioning the family dwelling and is entitled to claim a share in the same only when any male heir seeks partition of such dwelling house. Even at the time when Hindu succession Act, 1956 was enacted, various womens organization had voiced grievance that though the 1956 Act made commendable inroads into erstwhile Hindu System of inheritance still gender discrimination against the women was not fully done away with the 1956 Act, and with this object keeping in view section 23 has been omitted. This omission has disentitled the female heir to ask for the partition in respect of a dwelling house wholly occupied by the joint family until the male heirs choose to divide their respective share therein.10 The operation of the omitted statute is prospective in nature. The view of Karnataka High Court, expressed in Rathnakar rao v. leela Ashwath11 is as: The effect of omission of section 23 of the act would apply to all proceedings whether original or appellate involving adjudication of the rights of the parties and pending as on 9th September 2005 or initiated after that date

Omission of section 24

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Prabodh Chand v. Vijay Kapoor 2009 (83) AIC (P & H HC) 2007 (5) RCR (civil) 509

Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

The legislation removes a discriminatory section which barred certain widows from inheriting the deceased's property, if they had remarried. The reason behind the proposition of this bare clause is, on the date when the succession opened and the widow did not marry, she could succeed to the property and acquire absolute right therein under section 14 of the Act. Consequently, property once vested absolutely to her could not be divested.12 For better understanding, example of Baliram v. Rahubai13 can be taken. The Hindu widow after acquiring her share in the joint property as the heir of husband prior to the Hindu Succession Act came into force because absolute owner of such property under section 14(1) of the Act, after passing of the Hindu Succession Act which would not be divested after her re-marriage. But, if after her re-marriage, her fatherin-law died, she would not inherit the property as an heir of the deceased father-in-law as she had prior to such death had remarried. Her brother-in-law, being the surviving son of her father-in-law would inherit the share of father-in-law. Thus, the amendment of Hindu Succession Act of 1956 in 2005 is a total commitment for the women empowerment and protection of women's right to property. This Amending Act in a patrilineal system, like Mitakshara School of Hindu Law opened the door for the women, to have the birth right in the family property like the son. The women were vested the right of control and ownership of property beyond their right to sustenance.

12 13

Chanda v. Khubala AIR 1983 Pat 33 Bom 57

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Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

Criticism of Hindu Succession (Amendment) Act, 2005 The amendment will only benefit those women who are born into families that have ancestral property. There is no precise definition of ancestral property. Given the fact that families have long since been fragmented and the fact that the joint family system is on the decline, it is not at all clear whom this law will benefit. It cannot apply to selfacquired property. No person by birth will acquire any rights in selfacquired property. In today's context, most property is self-acquired and that property must follow principles of succession under the different succession laws. Moreover, its owner can dispose off such property during his lifetime by gift. It can be bequeath by will to anyone of his choice. The proposed amendment notwithstanding, a Hindu father can disinherit his wife or daughter by will, in his self-acquired property. The amendment therefore by itself cannot offer much to Hindu women. What is more, under the laws of certain states, it will actually disadvantage widows, as the share of the daughter will increase in comparison to the widow. The amendment is not at all well thought out and can play women against each other. There is no equity in that. Thus, though seemingly progressive, it does nothing more than make a political point, that the state is committed to abolishing discrimination against women, but only Hindu women. The position of women married into the joint family will actually become worse. The proposed amendment only makes the position of the female members of the joint family worse. With a daughter along with the sons acquiring a birthright, which she can presumably partition at any time, the rights of other members of the joint family get correspondingly diminished. While the reforms of the 1950s disadvantaged a divorced wife, the reforms of the present times will disadvantage married women as well. Until now, the only protection women had in the marital home was the status of being married, which carried with it the right to be maintained, not only by the husband, but by the joint family and its assets as a whole.

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Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

Thus, married women who lived in a joint Hindu family had the protection of the family home. This protection will now stand eroded, to the extent that the total divisible amount gets reduced. Something similar will happen to Hindu widows. Daughters will acquire a birthright in Hindu joint family property; mothers stand to lose a portion of the cake, as an inheritance. Since, Hindu law does not grant any rights to wives in marital property, their only chance of getting anything was on an inheritance, as equal share with the sons and daughters, if the marriage was subsisting on the death of the husband. On divorce, of course, even that right to inheritance disappears. It is birthright in Hindu law that is the root of the problem. Birthright by definition is a conservative institution, belonging to the era of feudalism, coupled as it was with the rule of primogeniture and the inalienability of land. When property becomes disposable and self-acquired, different rules of succession have to apply. It is in the making of those rules that gender justice has to be located. What the proposed amendment does is to reinforce the birthright without working out its consequences for all women. Justice cannot be secured for one category of women at the expense of another. It is impossible to deal with succession laws in isolation. One has to simultaneously look at laws of matrimonial property, divorce and succession to ensure a gender just regime of laws.

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Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

Conclusion
Empowerment of women, leading to an equal social status in society hinges, among other things, on their right to hold and inherit property. Several legal reforms have taken place since independence in India, including on equal share of daughters to property. Yet equal status remains elusive. Establishment of laws and bringing practices in conformity thereto is necessarily a long drawn out process. The government, the legislature, the judiciary, the media and civil society has to perform their roles, each in their own areas of competence and in a concerted manner for the process to be speedy and effective. These amendments can empower women both economically and socially and have far-reaching benefits for the family and society. Independent access to agricultural land can reduce a woman and her family's risk of poverty, improve her livelihood options, and enhance prospects of child survival, education and health. Women owning land or a house also face less risk of spousal violence. And land in women's names can increase productivity by improving credit and input access for numerous de facto female household heads. Making all daughters coparceners likewise has far-reaching implications. It gives women birthrights in joint family property that cannot be willed away. Rights in coparcenary property and the dwelling house will also provide social protection to women facing spousal violence or marital breakdown, by giving them a potential shelter. Millions of women - as widows and daughters - and their families thus stand to gain by these amendments.

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Efficacy of Relevant Legislation In Enlarging The Right of the Woman : HSA Perspective

Bibliography

1. B.M Gandhi, Hindu Law, 2nd Edn.,2003, Eastern Book Company 2. Dr. Basant K. Sharma, Hindu Law, 2nd Edn.,2008, Central Law Publication 3. Dr. Poonam Pradhan Saxena, Family Law II Lectures, 3rd edn, 2006, Lexis Nexis, Butterworth 4. Dr. S.R. Myeneni, Hindu Law (Family Law-I) 1st Edn., 2009 Asia Law House, Hyedrabad 5. N.R. Raghavachariar, Hindu Law Principles and Precedents, 8th Edn. 6. Paras Diwan, Modern Hindu Law, 9th Edn, 2008, Allahabad Law Agency 7. R.K Agrawal, Hindu Law, Reprint 2006, Central Law Agency

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