Sharing the mood

?Money is not a feminine subject.? This came from an elderly lady friend, who belonged to a very progressive middle-class family and had come to consult the solicitors? firm I work in after her husband?s death. ?It?s not something young women of my generation were taught to handle or understand. Though we were well educated, we were expected to marry doctors or lawyers or men in service and be taken care of.?

Empowerment of women, leading to an equal social status with men hinges, among other things, on their right to hold and inherit property. Civilized societies across the globe ensure that women?s inheritance rights are more secure than those of men because women take on the tremendous responsibility of producing and nurturing the next generation.

In India, women?s rights have suffered serious setbacks among all communities, especially after its colonial rulers imposed their own norms of property ownership. Despite the Hindu Succession Act being passed in 1956, which gave women equal inheritance rights with men, the mitakshara coparcenary system was retained and the government refused to abolish the system of joint family in spite of contrary recommendations by the select committee. According to this system, in the case of a joint family, the daughter gets a smaller share than the son. While dividing the father?s property between the mother, brother and sister, the share is equal. However, the brother and the mother are entitled to an additional share from which the sister is excluded. If the family owned a house, the daughter?s right therein was confined only to the right of residence, and that too till she got married.

T he enactment of the Hindu Succession (Andhra Pradesh) Amendment Act, 1985 made some improvement. According to it, the rights of the daughter are absolutely equal to those of the son, even in cases of application of the mitakshara system. Other states like Tamil Nadu, Maharashtra and Kerala made similar amendments.

The common belief that under Hindu personal law, the daughter has equal rights with the son, is because of Section 10 of the Hindu Succession Act, 1956 which unequivocally declares that property is to be distributed equally among class I heirs as specified in the Schedule (which lays down daughters, mothers and widows as class I heirs). But nothing could be further from the truth.

Under the customary Hindu law and the concept of ?mitakshara coparcenary? property, a Hindu undivided family consists of a common ancestor and all his lineal male descendants, together with wives or widows and unmarried daughters. A Hindu joint family is a unit and is represented by the karta or head.

A coparcenary is a narrower body of people within a joint family, and is crucial to the inheritance of property under Hindu law. A coparcenary comprises of the father and his three male lineal descendants. A coparcener has an interest by birth in the property of the joint family. This interest is not a quantified one; it changes with births and deaths within the family. Every coparcener has the right to be in joint possession and enjoyment of joint family property. A coparcener also has the right to claim partition, to get his interest individualized and separated. However, the person?s separate interest becomes communal property again on the birth of a son who acquires an equal interest in the property. On a coparcener?s death, his interest passes to the other coparceners. Women, be they daughters, mothers or widows, were not part of the coparcenary and could not claim partition.

The Hindu Succession Act retained the coparcenary. In fact, Section 6 specifically declares that on death, the interest of a male Hindu in mitakshara coparcenary property shall devolve by survivorship to other members of the coparcenary, and not by succession under the act. However, it laid down that the separate share of the deceased, computed through the device of a ?deemed partition? just before his death, would devolve according to the succession act.

The act did not clearly spell out the implications of exclusion from membership to the coparcenary in respect of inheritance of property. Thus, if a Hindu male died leaving a widow, a son and a daughter, then, according to Section 6 of the act, there will be deemed to be a partition just before the death of the person. In this, the father, mother and son each gets an equal one-third share of the property. The father?s half will be shared equally by his widow, son and daughter as his class I heirs. In effect, therefore, the daughter gets a share which is much smaller than that of the son, who gets his own one-third share from the deemed partition as a coparcener and an additional one-third from the share of his father. The privileged right by birth of sons in joint family property has been considered sacred and inviolate. It has also played a major role in the preference for sons in Indian society.

In a major blow to patriarchy, this bias between son and daughter has now been removed by the Hindu Succession (Amendment) Act, 2005. This has made the daughter a member of the coparcenary and is a significant step towards gender equality. The act includes daughters as coparceners in the mitakshara joint family property, with the same birthrights as sons to shares, to claim partition, and (by presumption) to become karta (manager), while also sharing the liabilities. The act also makes the heirs of predeceased sons and daughters more equal by including as class I heirs two generations of children of predeceased daughters, as was the case for sons.

One of the changes that accrue to the amendment is the share of the mother on the death of the father (karta), which will go down. This is because the share of the father at the time of his death will be less as the property will now be equally divided between father, mother, sons and daughters, and the daughters will now get a share equal to that of the sons and the mother and an equal share of the father?s separate share.

The 2005 act brings all agricultural land on par with other property and makes Hindu women?s inheritance rights in land legally equal to that of men across states, overriding state-level discriminatory tenurial laws. This can benefit millions of women dependent on agriculture for survival. The act also deletes Section 23 of the 1956 Act, (which did not allow married daughters, unless separated, deserted or widowed, even residence rights in the parental home) thereby giving all daughters, irrespective of their marital status, the same rights as sons to reside in or seek partition of the family dwelling.

Further the re-marriage of a widow shall not preclude her from claiming/inheriting the share/interest in the property of her late husband that would have been inherited by her if she had not remarried, thereby deleting Section 24 of the 1956 Act, which barred certain widows, such as those of predeceased sons, from inheriting the deceased's property if they had remarried.

Though the amendments are a step towards greater gender equality it is very unjust that these laws, giving women equal coparcenary status, are sought to be made applicable only to women who are not married at the time the law is passed. That is a woman who is married before September 5, 2005 will not get this benefit, as she will be governed by the earlier Act.

Furthermore, Section 30 of the unamended act allows any Hindu to dispose of his property, including his entire share, in the joint family property by will. This section can and has been used to disinherit women. Many have suggested that a limitation be placed on the right to create a will. Such a provision exists under Muslim personal law.

Section 8 of the act acknowledges only four primary heirs, namely, mother, widow, son and daughter. But if the son or daughter have already died, their children can inherit the property. This principle of representation goes up to two degree in the male line of descent, but in the female line of descent it goes only up to one degree. That is, the deceased son?s son?s son and son?s son?s daughter get a share but a deceased daughter?s daughter?s son and daughter?s daughter?s daughter do not have a share at all. Also, a widow of a pre-deceased son and grandson are class-I heirs, but the husbands of a deceased daughter or grand-daughters are not heirs.

Yet another discriminatory provision is found in Section 15 of the old act, which specifies that in the absence of class I heirs, the property of a female Hindu will go to her husband?s heirs, and only in their absence will the property devolve upon her mother and father. In the absence of the latter, the property will again devolve upon the heirs of the father and only if there are no heirs of father will the property devolve upon the heirs of the mother. All this means that there are several other provisions of the act which need to be looked into and amended.