Dec 20, 2004

EQUAL RIGHTS ON ANCESTRAL PROPERTY A WELCOME MOVE
THE NEED IS TO REMOVE FEAR OF LITIGATIONS AND WOMEN'S BURDENS

New Delhi : The Cabinet has finally given nod to the proposal to amend the Hindu Succession Act of 1956 that envisages equal rights to women in ancestral property, but we have miles to go before this amendment is passed in the Parliament. We have been witness to the behaviour of our legislators on Women's Bill which is still pending mainly due to their unwillingness to put the Bill to vote. Only a handful of legislators have been all along opposing it, and majority of the legislators are outwardly in its support, but inwardly do not want to get the Bill passed through voting. They want consensus on this regard while the other Bills have been passed despite more strong and vociferous opposition through the instrument of voting.

This shows the attitudes of our legislators towards women. Even in the case of this proposed amendment in the Hindu Succession Act, 1956, Government of India has been all along making all efforts to delay it. Thanks to the Supreme Court notice to the Centre on December 13, that compelled the government to decide for amendment within three days. The notice was served on a petition challenging the constitutional validity of Section 23 of the Hindu Succession Act, 1956 that provides for treating male and female heirs differently in the matter of inheritance. The Bench, comprising the Chief Justice, R.C. Lahoti, and Justice G.P. Mathur, issued the notice on the petition which said that the provision violated Articles 14 and 15 of the Constitution and can be struck down.

The Law Commission has gone through all the related issues and had drafted this Bill four years ago. It was lying with the government since then. Now, the Information and Broadcasting Minister S Jaypal Reddy says that the proposed amendment bill would be referred to a standing committee for further assessment. It is clear cut indication of the bill to be delayed.

In this backdrop, one can only hope that the proposed bill will be passed in the parliament sooner or later. But the question is what are we going to get through this amendment?

It is a well known fact that Section 23 of the Hindu succession act was based on the assumption that women were to be treated on a totally different footing than male heirs. The provision said that women heirs were to be subjected to scrutiny on the basis of their matrimonial status as divorced from their husbands. It was violative of Article 14 of the Constitution of India that guaranteed equality before law. Moreover, Article 15(1) prohibited the State from discriminating against any citizen on the grounds of gender.

The proposed amendment corrects this anomaly but not for the women who were married before the implementation of the new act. This way, married women could not hope for justice, even if they are crippled under injustices in this regard. In their case, arbitrary and unfair benefits to their siblings (male heirs) of a Hindu Father will continue, irrespective of the dieing without a will or dieing after preventing the woman from seeking partition to the property.
Presently, the provision is that if a man dies intestate then the woman would not have a right to seek partition of the property and would get a share only when the male heirs decided to divide it. Moreover, the woman could get a right to reside in the undivided property only if she was unmarried or faced desertion or separation from her husband or was widowed.

So, if the proposed amendment is passed, married but deserted , separated from husbands and widowed women get its benefit, but not the one who married off before the enactment of this law.

Nevertheless, the proposed Bill will change the power equations in the Hindu families. The women may now get their ownership on immovable properties that are more solid assets than jewellery and other movable assets. The fear of increase in intra-family litigations are there, but then one has to remove injustices done on the basis of gender. So far, only brothers are in litigations.
In the present structure of a Hindu family, married women usually do not have their own property. With the property in hand, they will now bound to be stronger, which on the one hand remove their helplessness and on the other they may restore the justice and equality inside the family.

As for the custom of dowry, it is bound to be less painful, because the dowry seekers knew that they can any time get hold of the property of their in-laws through their brides. With the sibling jealousies, the members from other families may be more ruthless in litigations. However, these can be sorted out, if there is a will to make justice to all. The dowry system, however, cannot be removed because it is associated with the so called social prestige of both the families, of the brides and bridegrooms.

The hope that this legislation would bring down crime against women, is not on sound footing. Dowry is generally less than the actual share of property of the woman concerned. There are, of course, exceptions. But the society, who are killing their daughter born and unborn to save the mere jewellery and money, how can then be willing to share their solid assets !
The need is to examine our societies. We do not know how people will react. For example, Muslim women do have property rights, but it is not in reality. It is rather notional. People disinherit their sons and daughters through wills, even when we know that sons and daughters have equal rights on the property earned by their father. Women have, as of now, been prevented from this right only on ancestral property.

We do not have a very good experience in this regard, although we have already made daughters coparceners in Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka. Due to bad experience in Kerala , the State governement had to even abolish coparcenary rights. In the Kerala model, according to the Kerala Joint Family System (Abolition) Act, 1975, the heirs (male and female) do not acquire property by birth but only hold it as tenants as if a partition has taken place.

The proposed bill is being considered to be a major blow to patriarchy among Hindus. But there is another thing which relates to liabilities. If the women are being given equal rights, they have to share the common liabilities that shifts the burden to the family of the husbands. It may create some troubles, for which we should protect both the families against their ill-doings. The women, loosely becoming 'Karta' or the head of the joint family will have to share many burdens. Other Civil Laws relating to property may interfere with the bridegrooms' families through the bride. It would be more problematic if people resort to recovery of liabilities of the family from the successors of the married women in the others families or vice-versa.

A problem may arise when the woman is the first child. In that case, in legal terms she will be the head of the family as if she is a son. In the case of grandsons and grand-daughters, they will have now property rights both in their fathers and mothers homes. Thus, even remote relations are bound to be litigants because rights shift downwards in both male and female lines.
We are uncertain about the behaviour of the distant families in the succession line. There might not be major problems in the immediate brother and sister relationship, but it is bound to occur more problematic in the succession line for which we have to think in advance, and make other necessary arrangements.(EOM)