Right To Property

Daughters right to property and

Hindu Succession

(amendment) Act2005: another blow in harmonious family relations? 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’ becoming irrelevant with the society becoming more individualistic and independent? Have our law makers used their authority to create one more dent in time tested harmonious relations woven into the fabric of Hindu 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 completed by the 2005 amendment to the Hindu Succession Act. It is an attempt to bring about mathematical equality between brothers and sisters as though equality in property is the only criteria by which to judge an egalitarian society. Our lawmakers have conveniently forgotten to appreciate the daughter’s role and status as a ‘wife vis a vis her husband’ 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 amendment; pros and cons of the 2005 amendment; why not place the wife on an equal footing with her husband; and ponder over some suggestions for the lawmakers to consider. B. Property rights to women under Hindu Succession Act 1956(HSA) Vis-a vis Hindu Succession (Amendment) Act 2005- a comparison

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Hindu Succession Act enacted in 1956 (which incorporates the Mitakshara principle of propinquity i.e. preference of heirs according to the proximity of relationship.) was commended by J.Duncan M.Derrett1 with his observation that the law of Succession has been so 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 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 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 those classes which normally leave wills. The predominantly patrilineal structure has been recognized but 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 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 point. Does the Act serve to promote the harmonious family relations or does it ill-serve healthy family relations ? Succession under 1956 Act Vs 2005 Act. 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 into an absolute estate(section 14) Principal Act I. separate property

Under 2005 amendment: separate property

12 heirs are specified in Class I who 2 more heirs are added: 1

Introduction to Modern Hindu Law: Oxford University Press: 1963 at p. 365

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are preferential/simultaneous heirs. They are: •

daughter

mother, widow, son, daughter,

• daughter of the predeceased daughter;

son

of

the

predeceased daughter, • son

• son of the predeceased

of

predeceased

of

the

predeceased daughter; • daughter

of

the

predeceased daughter of predeceased daughter

son,

daughter of predeceased son (ie. Upto great-grand children -of the ,daughter of the predeceased daughter and the son alike- are son of predeceased son, son of preferential heirs) the predeceased son of the predeceased son, • widow of the

predeceased

son, widow of the predeceased son of the predeceased son. Except the first 4 others take the representative

shares

of

their

deceased ancestor •

note: 8 out of 12 are female heirs and one is a male heir claiming through the daughter.

• Upto grand-children of the daughter; and great-grand children of the son are

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preferential heirs) II. Mitakshara

coparcenory

interest •

Mitakshara coparcenory interest

Sons alone were coparceners •

by birth

daughters

are

also

made

coparceners by birth. • If the deceased left behind female heirs specified in Class

• Same as before but with the

I or male heirs claiming

addition of 2 more heirs in

through female heirs- property

Class I(viz the great-grand

devolves by testamentary or

children of the daughter)

intestate succession and not by survivorship (proviso to secion6 of the HSA) NOTE: facts show that in a large majority of the cases, one or the other female heir in Class I or male claiming through female heir would invariably be alive at the death of the intestate. Therefore, the proviso is larger than the rule which says that Mitakshara

interest

devolves

by

survivorship. Hence, in most of the cases Coparcenory property also is available to class I heirs including 4

the daughters. •

Daughters and sons have equal shares in the man’s ‘notional’

• Same as before

share of undivided interest in Coparcenory property. •

In addition, son takes the share independently as coparcener by birth.

• Daughter also takes a share independently by birth. She takes the liabilities also on par with the son. By implication, she takes the rights and duties of a karta also.

Eg

Father

dies-

leaves son +

daughter. Father’s notional share is

In the Same Eg daughter also has

½; and son has ½ share by birth.

1/3 share by birth. After father’s

After father’s death- his ½ share to

death- his 1/3rd share is divided

be divided between the son and

between the son and the daughter.

daughter

Now son and daughter take- 1/3

son takes= ½ + ¼

(own share) + 1/6

daughter = ¼

( from father’s share)

III. Agricultural landIt was governed by the State tenurial Agricultural landlaws and only where the State laws It is now subject to the succession were silent, HSA applied. under the amendment and females have a share in it.. I. Dwelling house (sec 23) 5

•

A female heir cannot claim partition of the dwelling house wholly occupied by

Dwelling house •

Section 23 deleted. Daughters-

members of the family of the

both married and unmarried

deceased until the male heirs

have the same right to reside in

choose to divide their shares

and claim partition of the

• Unmarried daughter has a right

of

residence.

But

parental dwelling house. The right is not circumscribed by

married daughter has a right

any conditions or

of residence only if widowed,

contingencies as before.

separated or deserted. NOTE: it was a fair provision and alive to real life contingencies V. Widows remarrying Widow of the predeceased son, widow of the predeceased son of

Widows remarrying

the predeceased son and the widow

They can inherit even if they have

of the brother are not entitled to

remarried.

inherit if she has remarried on the

establishing a new matrimonial

date the succession opens.

union in a another family- may be

(i.e.

even

after

already

a total stranger family- she has a

inherited is not divested if she

share in her former father in law

marries after the death of the

/grand father in law’s property .!!!

NOTE:

the

property

deceased because law does not favour divesting of the property once vested.

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The net result of Hindu Succession Act and the other laws is that: •

the liability of the parents towards daughter extends well beyond her marriage. The daughter and in her absence- her children, her grandchildren and great grand children- are entitled to a share in the separate and Coparcenory property of her father. They are entitled to a share in the agricultural lands; the daughters- both married and unmarried are entitled to ask for a partition, right of residence in the dwelling house occupied by her brothers even when the brothers are living jointly and without any contingencies like widowhood,divorce etc.

• Under the Hindu Adoption and Maintenance Act- the parents are primarily liable to maintain the unmarried daughter until minority and beyond minority – to the extent she is unable to maintain out of her own earnings. Maintenance under the Act includes food, clothing, residence, education, medical treatment, and reasonable expenses of marriage. •

In addition, under circumstances specified under the Hindu Adoption and Maintenance Act2- if she becomes a widow, she is a ‘dependant’ and her maintenance amount forms a charge on the assets inherited by the heirs of her father or mother.

More often than not- with or without any State made law- the parents have been discharging their parental obligations out of sheer love and concern and empathy in case of the daughter in distress. Things done voluntarily are more enduring. 2

section 21

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I submit- the liability of the parents under the present system has been extended much beyond reasonable and natural limits, having regard to the actual facts including the fact that after marriage the daughter passes over to the husband’s family and the husband is under a legal and a moral obligation to maintain her. C. Pros and Cons of the 2005 amendment3 The question is : how far are the laws conducive to the healthy survival of the families as an institution? My submission on the matter is as under: The Act disturbs the finely integrated emotional and sentimental threads woven into Hindu families. Existing family realities and the existing healthy attitude of the Hindu families towards the daughters are not appreciated. The 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 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 are dead, in the large majority of the cases the brothers take full responsibility of their sisters,- at times even by incurring loans and postponing their own marriages. This has been the culture of the Hindu society- given the sacred teachings handed over to us down several 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 is in the face of these facts that the law concerning property rights to females has been amended in an attempt to bring about equality with 3

Also see ‘bill on property rights to daughters :the forgotten wife’ :Indian Law Reports 1992(Kar) JS at p. 21 by the same author

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mathematical accuracy without taking into consideration the existing 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 solid foundation of love/affection, care and concern. 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 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 unable to discharge the burden? The question must be answered 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 of her husband and her matrimonial home becomes the center of all her attention/ affection, care and concern. This is not because she does not have 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 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 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 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 generation who are the custodians of the future generation- though 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 up the liabilities towards her parents also? The term ‘Liability’ must be given 9

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 maiden home. It is not just sending a monthly cheque to her parents. A stage is reached where the parents need physical caring and physical nearness more than just money. Howsoever much she may desire, and even with the most broad-minded and understanding husband and in-laws, she would not 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 like to be taken care of by the son rather than the married daughter. Somewhere deep inside, they would feel embarrassed if circumstances arise where they have to rely on the married daughter during their old age days. This is the psyche deeply ingrained due to what ever reasons. 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, without her knowledge. At the same time it would be impracticable and unfair to expect the father and the brothers to consult her and get her consent for every transaction involving family liability – which are matters which any family would like to hold close to its chest. 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 her brother? Can the creditors proceed against her also for recovery? Allotting an equal share in immovable property– has its own problems specially in an average family with moderate means. When she moves out to live with her husband- she becomes an absentee landlord; or she may be 10

induced or forced to demand a partition and sell her share. Generally partition takes place after the death of the father; she may become instrumental – willing or unwilling- in splitting the family bonds- for which somewhere deep in her mind she would be repenting for her helplessness; 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 –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 demand her share in her parents’ property – and on the other hand- her own realization about the love and concern with which she has been brought up 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 infanticide/ or suicides/ and more litigations cannot be ruled out. Equal rights in agricultural lands given to daughters under the 2005 amendment will lead to fragmentation of the lands which will reduce the 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 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 livelihood. The rights pertaining to dwelling houses cannot simply be comprehended. Rights in the dwelling houses along with the right in agricultural lands is the height of injustice to the family of her birth. No wonder if this right is traded for monetary gain.

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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 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 also inherit their estate. India, primarily has a patriarchal set-up where law under consideration would do more injustice than justice. D. Place wife on an equal footing as the husband 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 to weigh her property rights as a wife versus her contributions towards ‘making that home a worthy place to live.’ The non-monetary contribution of the wife like the home-making efforts, the sacrifices made by her like foregoing career opportunities or carrying on the career in a low profile, her opportunity cost of time etc must be recognized and protected. Under the present legal system, during the lifetime of her husband, her monetary security lies in the maintenance provisions under the Hindu Adoption and Maintenance Act; the Criminal Procedure Code and the Hindu Marriage Act. In addition we have our testamentary laws under which an unscrupulous 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 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 Adoption and Maintenance Act under which a widowed daughter is his dependant under specified conditions.} A truly insufficient caring for a person who dedicates her whole life for that family (minus the initial years before marriage). This is because our legalistic concept of title to property 12

obscures the fact that man and woman are equal partners in marriage and 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 aspire for ‘widowhood’ to obtain a share in the husband’s property? What she needs is a share as a ‘wife’ by recognizing her non-monetary contribution towards home-making specially in cases where she may not be a working woman. There can be no two opinion on the point that equals must be treated equally. Until marriage– daughter and the brother must be treated on par as regards all matters like- food, clothing, shelter, education, marriage expenses or performance of marriage in a manner befitting the family standing and status and means. Marriage brings about a change in the status and the liability shifts over to the husband from the father. As Manu puts it: 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 each other as ‘sakha-friend’. Under the present legal system also the husband is under primary and personal obligation to maintain his wife. However she is the ‘forgotten wife’ as far as her property rights are concerned. The Act and the Amendment under consideration is not alive to the real life situations. This is the ultimate consequence. In Conclusion- one obvious reality is that after marriage – either the wife 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. Following are some of the suggestions offered for the patriarchal system which is prevalent in our country: 13

•

Accept the fact that there is a limit up to which a sister can be treated on par with the brother.

•

After marriage treat husband and wife on an equal footing. Property earned during the subsistence of marriage be regarded as joint property subject to maintenance rights of the dependants. Let the legalistic concept of title not come in the way of recognition that both are equal partners in home making efforts

•

Specify a limit beyond which property cannot be bequeathed away in order to provide for the heirs as under the Mohammadan law.

•

If the present 2005 amendment is to continue in its present form- in the interest of the harmonious family relation- link the inheritance rights in agricultural land - to the quantum of property held by the deceased at the time of his death and her own income and her husband’s income and property worth. •

Realize and promote the view that the best form of security is one which comes from earnings out of self exertion. Everything else is a bonus. So equip the females by enhanced education facilities and the like

In fact a threadbare discussion on the issues involved would have served the cause of the women folk better.

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Gist Daughters right to property and Hindu Succession (amendment) Act 2005: another blow in harmonious family relations Is our society moving away from family bonds and attachment with the shift from joint families to nuclear families? Is the need for family security lessening with the society becoming more individualistic and independent? Have our law makers given another blow at the time tested harmonious relations woven into the fabric of Hindu 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 completed by the 2005 amendment to the Hindu Succession Act. The amendment is an attempt to bring about mathematical equality between brothers and sisters as though equality in property is the only criteria by which to judge an egalitarian society. Our lawmakers have conveniently forgotten to appreciate the daughter’s role and her status as a ‘wife vis a vis her husband’ Hindu Succession Act enacted in 1956

was commended by J.Duncan

M.Derrett4 with his observation that the “law of Succession has been so 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 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 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 those classes which normally leave wills. The predominantly patrilineal

4

Introduction to Modern Hindu Law: Oxford University Press: 1963 at p. 365

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structure has been recognized but 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 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 point. Does the Act serve to promote the harmonious family relations or does it boomrang?

Are the liabilities of her parents extended beyond

reasonable limits? Is the daughter in a practical position to discharge her liabilities towards her parents after her marriage? Does this kind of amendment fit into the patriarchial system prevalent in India? For more click here

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