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The rights of women as coparcenars


The Right s Of Women As Coparcenars In A Hindu Joint Family Int roduct ion
T he paper is an attempt to showcase the Hindu succession laws as per the Hindu Succession Act 1956 and Hindu succession (Amendment) Act 2005 as well the uncodif ied Hindu laws and apply it f or determining the Rights Of Women As Coparcenars in a Hindu Joint Family. T he paper will address the issues related to (i) T he Laws of inheritance and succession in the Medieval Hindu Personal laws and their implication towards the Rights f or Women, (ii)T he Laws of Coparcenary f or T he Hindus in the present era and its implication towards women who is a member of a joint Hindu f amily and (iii) Also whether the Hindu Succession (Amendment) Act 2005 is an error f ree legislation or not? One signif icant idea behind the evolution of f amily in human society is of providing security to members. T he Personal Laws In India work as a source of rules and regulations which act as guidelines f or people of a particular sect or religion. T he Indian Penal Code, 1860, def ines Personal laws as T he law which governs certain aspects of a person's relationships or rights or privileges in regard to certain matters such as succession, marriages, etc, by virtue of his belonging to a particular community or group. T heref ore Personal Law presumes if a particular person f ollows it then he consents his membership to that community. In the Indian context, Personal Law ref ers laws adopted by communities like Hindus, Muslim , Christian and Paarsi community. T he Judicial system in India f rom the colonial era has put its ef f ort on codif ying these Personal Laws . T he general principles of inheritance in Hindu Law are codif ied in the Hindu Succession Act of 1956. T he act came into existence into f orce on 17 June 1956, with the basic objective of providing a comprehensive and unif orm scheme of intestate succession f or Hindus. T he enactment of the act had to pass through certain hurdles. T here were certain provisions which were not accepted by the leaders of various branches of Hindu Law. T he act abolished the distinct Laws of Succession under the Dayabhaga and Mitakshara systems and provides a unif orm law, based on natural love and af f ection and nearness in relationship. T he most important f eature of codif ication of Hindu Law was identif ication of Rights of women in the Hindu Joint Family. In the words of saxena, the concept of limited estate f or Hindu women was abolished and was replaced by Absolute ownership. Again the act provided f or two dif f erent schemes f or male and f emale intestates in which the f emale intestates had a f urther divergence linked with the source of acquisition of the property that is a subject matter of succession. However, on the recommendation of the 174th Law Report of the Law Commission on Property Rights of Women-Proposed Ref orms Under Hindu Law' , T he Hindu Succession (Amendment) Act was established in the Rajya Sabha on 16th August 2007.T he act primarily amended Sec 6 of the Hindu Succession Act(1956) and provided equal Copercenary Rights to the daughter of a Joint Hindu Family.

Women's St at us During The Medieval Era In A Hindu Joint Family


Wealth provides security to individuals.According to Dharma Shastra it is the duty of the householders(Grahasta) to provide saf ety and security to children, the old, and the inf irm and other such members of the f amily who cannot be independent. T he f ather in a patriarchial society is expected to take care of his f amily. In a Joint Hindu Family where a number of individuals live together the economic resources owned by each one of them are transf erred to a common f und. T his entire compound of f und is controlled by the senior most member of the f amily which is called the Karta'. T he Dharma Shastra tries to saf eguard the interests of the diversif ied sections of the society. With the passage of time ef f orts have also been made to recognise the rights of women as mothers, daughters in law, widows of deceased male members, daughters and even unwed and illegitimate keeps.

In the medieval era the law of inheritance were basically governed by two schools of thought namely the Mitakshara and T he Dayabhaga system. Prior to the enactment of the Hindu Succession Act 1956 the ruling canon in determining the order of succession in Mitakshara system was propinquity and in the Dayabhaga system it was religious ef f icacy. T he Dharma Shastra conf ers right towards married women. According to Mathur, Dharma Shastra presents various stages of evolution of law on the wif e's right to property, particularly her husbands property- both self acquired and ancestral. Again Apastamba said that the husband and wif e had a joint interest (in the acquisition and disposal of wealth). T he importance of mother in deciding the matters related to Joint Family Property can be gauged f rom the f ollowing remark of Manu Smriti , brothers may take equally the ancestral wealth af ter the mother and the f ather alive. Again Yajnavalkya also means that the sons shall divide their ancestral estate and the paternal debts equally upon the death of both the parents.

T he Dayabhaga system lays down that af ter the death of the f ather the sons do T he Dayabhaga system lays down that af ter the death of the f ather the sons do not possess any right to independently divide the property throughout the lif e of the mother. However the sons may divide with the consent of the mother. Jimutavahana f urther lays down that , where a person leaves behind more than one widow, each having an equal number of sons, the widow may partition the property among themselves not possess any right to independently divide the property throughout the lif e of the mother. However, in the Mitakshara system the son is recognised as a co-owner with the f ather of all the ancestral property and has an interest in the property since birth. Again. T he consent of mother f or partition is irrelevant in this system. T he Shastas, f or instance the Yajnavalkya have recognised the wif e's share in the property when the husband is alive. In this context the concept of Stridhana, is recognised by various schools of thought. According to Mayne's Hindu Law and usage the property held by a women is called Stridhana. Women are awarded the right to hold separate property under Hindu Law. T here are various f orms of properties which are received by women as Stridhana. T hey include:Bef ore the nuptial f ire At the bridal possession which she is led f rom her f ather's house to her husband's dwelling Bestowed in token of love Gif ts f rom f ather, mother and brother

Gif ts f rom bandhus , and so on

In the medieval times, even though the wives were allowed to hold the property but their demanding partition was generally unaccepted. Apastamba , has stated that husbands and wives were joint owners of the propertyand that no division was possible. According to an issue raised by Devana against Y.S. II 115 , the wif e and husband cannot separate like sons and that the wif e holding property separately f rom the husband, only implies that when the husband divides the sons f rom herself he should take a share f or his wif e as well and keep it under his control along with his own share. T he schools of Hindu Law in the medieval times recognised the Rights of Unmarried sister in a Hindu Joint Family. According to T he Dharma shastras, the unmarried sisters have the right to be mentained by her f ather and brothers, and also the Right to be married of f f or which the f ather or the brother may draw f rom the ancestral corpus. Again, the duty of Marrying of f the sister is also vested of f with the f ather and the brother. It has been laid down by Manu that each brother must give one f ourth of the share to the unmarried sister. Again the Yajnavalka prescribes that the married' brother must give one f ourth of their f or the marriage of the unmarried sisters' T he term one f ourth' has been criticised f or a lot of time now. According to Mitakshara one f orth did not mean one f ourth of the each brothers share but only one f ourth of the share that the daughter would have received if she were a son' Candeswara echoes the verdict of Mitaksara by saying that though several texts mention that one f ourth' share is to given by the brothers it need not be taken literally. Again Devana Bhata , has discussed this issue in detail. In his words, if the ancestral home is small then each brother xhall give one f ourth share of his holding towards the marriage of the sister. Again, when the paternal wealth is large then the brothers can contribute as much as they can. Similarly, if the number of sisters is very large then the brothers have to f ollow Manu's rule, and contribute one f ourth share f or the wedding of all the sisters together.

Recognit ion Of The Right s Of Women Post Colonialism And In The Present Era
T he rights of the women were f irstly recognised by T he Hindu Women's Right To Property Act 1937. T he act was one of the f irst legislation f or the welf are of Hindu women in general. T he very intention of the act was to conf er better rights upon Hindu women in respect of the properties. T he act in investing the widow of a member of the coparcenary with the interest which the member had at the time of his death has introduced changes which are alien to the time of his death. However in the Mitakshara coparcenary women cannot be coparcenars. T he act was later replaced by the Hindu Succession Act, 1956 . T he act was adopted on 17th June 1956 . It amends and modif ies the aspects of classical Hindu law and Mitakshara Coparcenary, intestate succession and even testamentary succession. T he act f urther abolished the dif f erence between the Mitakshara and Dayabhaga System . Most importantly the system abolished the concept of limited estate to women and replaced it with absolute ownership. Again the act provided f or two dif f erent schemes of succession f or male and f emale intestates. T he act provides f or totality of testamentary disposition of the property. However, the act could not depart f rom the concept of stridhana even though it made radical progress with the conf erment of absolute ownership on the women. Again, according to saxena, on one hand the determination of the heir was done on the basis of nearness or natural love with and af f ection, and not on the basis of consanguinity and religious ef f icacy, the rule was limited to Class I and Class II of heirs, but on the other hand in case of remoter category the pref erence was given to male chain. Also with the retention of the mitakshara system a lot of its f undamental principles are still in operation. T he Hindu Succession Act 1956 deleted the concept of saviour ship f rom the provisions of coparcenaries' in Hindu Joint Family. T he concept of saviour ship means that the moment a son is born in a Hindu Joint Family; he takes over interest in the coparcenaries'. T he other salient f eature of the act was introduction of the concept of will in the testamentary succession laws. Even though intestate succession laws was the area where the act concentrated but still it stated the a male or a f emale Hindu can create a will of his property . T his will takes af f ect f rom the date of the death of the person creating the will.

T he Rights of the Women as Coparceners were f ormally recognised f airly recently with the Hindu Succession (Amendment) Act 2005. T he act is considered as a landmark f orm of legislation as f ar as women's rights are concerned. Sec. 6 of the Hindu Succession Amendment Act introduces a daughter as a coparcener in a Hindu Joint Family irrespective of her marital status. Bef ore this Amendment act f our states had brought about a similar change .T hus the discrimination between the daughter and the son has come to an end as her rights and liabilities are same as that of the son. T he Act has made a noteworthy ef f ort to look that the marital status of the daughter on or bef ore the enactment of this Act does not af f ect her coparcenary right and theref ore no discrimination prevails between the married and unmarried daughter. T here are again some issues on which the Act of 2005 can be contested. T he issue of discrimination on the grounds of gender on the issue of saviour ship has been highly criticised. Sec.6(2) of the act says that, the f emale will hold the property with incidents of coparcenary ownership. However, the legislation has not explained what these incidents of coparcenary property are? T hus, in this condition while applying the principles of Medieval Hindu Law it can be explained the property will either be jointly held by the coparceners or it will be subject to saviour ship. However, the concept of saviour ship has been abolished f or the male members of the coparcenary. T hus, this creates a discrimination on the grounds of gender on the issue of coparcenary. T he Act also recognises the right of the daughter with respect of notional partition. T he Act also abolishes the provision relating to the inapplicability of including Agricultural property under the purview of the act. However at the same time it does not clarif y whether agricultural property would be or would not be subject to the application of the act. T he deletion of Sec.4(2) f rom the act has brought an ambiguity over the issue of Agricultural Property. T he provision meant that the act will not apply over agricultural property a state statute is already present. But the state governments usually f ollow a policy according to which it has a unif orm code f or land related matters. T hus, diversity would exist state wise with respect to laws governing agricultural property. Again the act also deletes Sec.24 of the act which doesn't provide the Right of Coparcenary to certain remarried widows. T he earlier law only included three widows i.e, widow of a predeceased son, widow of a predeceased son of a predeceased son and brother's widow. T he act includes all the widows irrespective of their status. T he act provides the f emale coparceners to make their testamentary disposition of heir property. A f emale coparcener is empowered to dispose of her wealth by writing a will. In this regard the amended Sec. 30 of he act specif ically includes the words disposed of by him or her instead of disposed of by him. T he Act also abolishes special rules relating to dwelling house. According to Saxena, one of the major discriminatory provisions under Hindu Succession Act 1956 was Sec.23, which specif ied special rules relating to the devolution of a dwelling house. T he clauses of Sec.23 of the Act bef ore its abrogation provided that where a Hindu intestate has lef t surviving both male and f emale heirs and that his property includes a dwelling house which is occupied by the members of his f amily then any f emale heir of the Hindu intestate cannot claim partition of the dwelling house until and unless the male heirs also consent f or its partition.. Moreover, if the f emale heir is an unmarried daughter or is separated by her husband or is a widow then she can claim f or Right of Residence. T he Hindu Succession (Amendment) Act 2005 amends this provision and promotes gender equality.

Conclusion

Hindu Succession Laws have certainly become dynamic with the passage of time. Women's Right to Property have gradually been recognised by the Codif ied Hindu Personal laws. With T he Hindu Succession(Amendment) Act 2005, Hindu women are been empowered equal Rights when compared to male in the matter of Coparcenary by birth.. However, there still exists some grey areas on which the provision of the act are not clear. One such area is when a Hindu male marries a Non -Hindu f emale then an of f spring of theirs will not be regarded as a Hindu Joint Family Coparcenar. Again, the matter of abolishing Saviour ship by birth f or male child and the lack of clarity on this matter f or a f emale child is also a cause of concern. Similarly, there is conf usion in on the matters of Agricultural Property. T he Amending Act also does not provide any clear ruling on the matter of devolution of Property of a f emale. If a Hindu Female gets a share of her coparcenary property, marries and dies, then who would succeed to her interest -her husband or her natal f amily members? T he interest of the f emale coparcener should ideally be given to her husband and her children. T he issue concerning the Women's Rights in a patriarchial Hindu society is really concerning. Formulation of legislations like Hindu Succession Act 1956 and T he Hindu succession(Amendment) Act 2005 largely helps in the establishment of the basic constitutional tool of Right to Equality. However, as mentioned above the statute must avoid conf usion on certain matters. Again on the other hand the women community must be made aware of their rights so that they can utilise it f or their benef it.

Bibliography St at ut e
a. Hindu Succession Act(1956) b. Hindu Succession (Amendment) Act (2005) c. Hindu Women's Right To Property Act 1937

Art icles, Not es And Comment s In Journals, Books And Colloquia


a.8 Halsbury's laws of India, 274-331(2007) b. Dayabhaga D.B III 1.1, 1.9 C. Manusmriti M.S IX 104, 118 d. SC II PP: 625-627 e. Yajnavalkya Y.S II 117, 124

Books
a. Ashutosh Mathur, Medieval Hindu Law, 62- 112, Cambridge University Press, b. G.C.V. Subba Rao, Family Law, Gogia Law Publishers c. Mayne's Hindu Law and Usage, 840, (12th ed.1986) d. Mulla on Hindu Law, 201(17th ed. 1999) e. Poonam Pradhan Saxena, Family Law Lectures Family Law II, Lexis Nexis Butterworths

St at ut es
a. Commissioner Income Tax v Govind Ram Sugar Mills, AIR 1966 SC 240

b. Anar devi and ors v Parmeshwari Devi and ors SC 4171 (2006) c. Sheela Devi and ors v Lal Chand and ors SC 4326 (2006)

Miscellaneous
a. P. Ramanatha Aiyer, Concise Law Dictionary, 872, (3rd ed. Repriint 2007)

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