Changes Brought in the Position of Women

8/3/2019 Changes Brought in the Position of Women

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Changes brought in the position of women(specifically in Sec 6 of the HSA, 1956) after the 2005 Amendment (431)

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Shelly Saluja and Soumya Saxena - NLIU Law Student

ntroductionhe Constitution of India provides that every person is entitled for equality before law and equal protection of tws and thereby prohibits discrimination on the basis of caste, creed and sex. The discrimination on the basis o

ex is permissible only as protective measures to the female citizens as there is need to empower women whoave suffered gender discrimination for centuries. Empowerment of women, leading to an equal social status w

men hinges, among other things, on their right to hold and inherit property. Civilized societies across the globensure that women's inheritance rights are more secure than those of men because women take on theemendous responsibility of producing and nurturing the next generation. In India, women's rights have suffereerious setbacks among all communities. Before 1956

espite the Hindu Succession Act being passed in 1956, which gave women equal inheritance rights with men, mitakshara coparcenary system was retained and the government refused to abolish the system of joint familyccording to this system, in the case of a joint family, the daughter gets a smaller share than the son . Whileividing the father'sroperty between the mother, brother and sister, the share is equal.

he Constitution of India enshrines the principle of gender equality in its Preamble and Parts III, IV and IVAertaining to Fundamental Rights, Fundamental Duties and Directive Principles respectively. The Constitution nnly grants equality to women, but also empowers the State to adopt measures of positive discrimination in favf women. And now as India becomes increasingly aware of the need for equal rights for women, the governmean't afford to overlook, property rights have a deep impact on the national economy. The need to dispense genustice raises deep political debate and at times acrimony in legislative forums. This enthused the ?house? to m

bill to make amendments in the Hindu Succession Act, to secure the rights of women in the area of property.

he aim is to end gender discrimination in Mitakshara coparcenary by including daughters in the system.itakshara is one of the two schools of Hindu Law but it prevails in a large part of the country. Under this, a son

on's son, great grandson and great great grandson have a right by birth to ancestral property or properties in ands of the father and their interest is equal to that of the father. The group having this right is termed aoparcenary. The coparcenary is at present confined to

male members of the joint family, it has been further elucidated in the project.

he Hindu Succession (Amendment) Act, 2005 is a landmark. After 50 years, the Government finally addressedome persisting gender inequalities in the 1956 Hindu Succession Act (1956 HSA), which itself was path-breakihe 2005 Act covers inequalities on several fronts:

gricultural land; Mitakshara joint family property; parental dwelling house; and certain widow's. The amendme

as come into operation from 2005; our project makes an analysis of this amendment, in that specifically dealinith changes brought in the woman's property rights in Mitakshara joint family property, what effects it will havn the position of women, loopholes in the amendment, its advantages and disadvantages and few suggestion

make it more effectual.

What Is Mitakshara Coparcenary?oparcenary literally means Joint inheritance or heirship of property. Also called parcenary. Coparcenary is aarrower body of persons within a joint family, and consists of father, son, son's son, son's son's son. The dispa

n the property rights on the basis of gender is deep rooted and can be traced back to the ancient times.

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raditional Hindu inheritance laws evolved from the ancient texts of Dharmashastras and the variousommentaries and legal treatises on them. In particular, theitakshara and the Dayabhaga legal doctrines, dated around the twelfth century AD govern the inheritanceractices among the Hindus. In most of northern and parts of western India Mitakshara law is prevalent.Under titakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a

on, grandson and a great grandson constitute a class of coparceners, based on birth in the family. No female imember of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves byurvivorship within the coparcenary. This means that withvery birth or death of a male in the family, the share of every other surviving male either gets diminished ornlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If nother son is born in the family, automatically the share of each male is reduced to one fourth. The Mitaksharaw also recognizes inheritance by succession but only to the property separately owned by an individual male

emale. Females are included as heirs tohis kind of property by Mitakshara law.

osition Of Woman (In Regards To Property Rights) Prior To Enactment Of Hindu Succession Act,956-nce time immemorial the framing of all property laws have been exclusively for the benefit of man, and woma

as been treated as subservient, and dependent on male support. The right to property is important for theeedom and development of a human being. Prior to the Act of 1956, Shastric and Customary laws, which varieom region to region, governed Hindus and sometimes it varied in the same region on a caste basis. As theountry is vast and communications and social interactions in the past were difficult, it led to diversity in the lawonsequently in matters of succession also, there werefferent schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat aarumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The

multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laven mere complex.ut, however the social reform movement during the pre-independence period raised the issue of genderscrimination and a number of ameliorative steps were initiated. The principal reform that was called for, and ohich became a pressing necessity in view of changed social and economic conditions, was that in succession

here should be equitable distribution between male and female heirs and the Hindu women's limited estate sh

e enlarged into full ownership (howeverhat actually never happened). The only property over which she had an absolute ownership was the Stridhan

meaning women's property.

rior to Hindu Law of Inheritance Act, 1929-rior to this Act, the Mitakshara law also recognizes inheritance by succession but only to the property separatewned by an individual, male or female. Females are included as heirs to this kind of property by Mitakshara lawefore the Hindu Law of Inheritance Act 1929, the Bengal, Benares and Mithila sub schools of Mitaksharaecognized only five female relations as being entitled to inherit namely - widow, daughter, mother paternalrandmother, and paternal great-grand mother . The Madras sub-school recognized the heritable capacity of arger number of female's heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who axpressly named as heirs in Hindu Law of Inheritance Act, 1929.The son's daughter and the daughter's daughteanked as bandhus in Bombay and Madras. The Bombay school which

most liberal to women, recognized a number of other female heirs including a half sister, father's sister andomen married into the family such as stepmother, son's widow, brother's widow and also many other femalesassified as bandhus.

indu Law of Inheritance Act, 1929-his was the earliest piece of legislation, bringing woman into the scheme of inheritance. This Act, conferrednheritance rightsn three female heirs i.e. son's daughter, daughter's daughter and sister (thereby creating limited restriction onhe rule of



urvivorship).

indu Women's Right to Property Act (XVIII of), 1937-his was the landmark legislation conferring ownership rights on women. This Act brought about revolutionaryhanges in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the

f partition, alienation of property, inheritance and adoption . The Act of 1937 enabled the widow to succeed alith the son and to take a share equal to that of the son. But, the widow did not become a coparcener even thohe possessed a right akin to aoparcenary interest in the property and was a member of the joint family. The widow was entitled only to a limstate in the property of the deceased with a right to claim partition . A daughter had virtually no inheritanceghts.

espite these enactments having brought important changes in the law of succession by conferring new rights uccession on certain females, these were still found to be incoherent and defective in many respects and gavese to a number of anomalies and left untouched the basic features of discrimination against women. Thesenactments now stand repealed.

onstitutional Provisions ensuring Gender Equality-he framers of the Indian Constitution took note of the adverse condition of women in society and a number of rovisions and safeguards were included in the Constitution to ward off gender inequality. In this context, Artic4 , 15(3) and 16 of the Constitution can be mentioned. These provisions are part of the Fundamental Rightsuaranteed by the Constitution. Part IV containing Directive Principles of State Policy, which are no lessundamental in the governance of the State to ensure equality between man and woman such as equal pay forqual work. The Directive Principles further endorses the principle of gender equality, which the State has to fo

n matters of governance. Similarly, Part IVA of the Constitution enshrining the Fundamental Duties states that:

It shall be the duty of every citizen of India -e) ... to renounce practices derogatory to the dignity of women...

espite these provisions for ensuring equal status, unfortunately a woman is still not only neglected in her own

atal family but also the family she marries into because of certain laws and attitudes.

osition Of Woman After Enactment Of Hindu Succession Act, 1956-fter the advent of the Constitution, the first law made at the central level pertaining to property and inheritanoncerning Hindus was the Hindu Succession Act, 1956 (hereinafter called the HSA). This Act dealing with intesuccession among Hindus came into force on 17th June 1956. It brought about changes in the law of successionnd gave rights, which were hitherto unknown, in relation to a woman's property. The section 6 of Hinduuccession Act, 1956 follows as:

evolution of interest in coparcenary property. - When a male Hindu dies after the commencement of this Act,aving at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shevolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:rovided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a m

elative specified in that class who claims through such female relative, the interest of the deceased in theitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be anot by survivorship.

xplanation 1. For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemede the share in the property that would have been allotted to him if a partition of the property had taken place

mmediately before his death, irrespective of whether he was entitled to claim partition or not.

xplanation 2. Nothing contained in the proviso to this section shall be construed as enabling a person who h



eparated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestashare in the interest referred to therein.

ection 6 deals with the devolution of the interest of a male Hindu in coparcenary property it says that if a malindu dies leaving behind his share in Mithakshara Co-parcenary property , such property will pass on to his son

on's son's, son's son's son by survivorship, on surviving members. In case there are female relatives likeaughter, widow, mother, daughter of predeceased son, daughter of predeceased daughter, widow of predeceaon, widow of predeceased son of aredeceased son, then the interest of the deceased co-parcenary will pass on to his heirs by succession and noturvivorship . And while recognizing the rule of devolution by survivorship among the members of the coparcen

makes an exception to the rule in the proviso. According to the proviso, if the deceased has left him surviving aemale relative specified in Class I of Schedule I, or a male relative specified in that Class who claims through suemale relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamenr intestate succession under this Act and not by survivorship. The rule of survivorship comes into operation on

Where the deceased does not leave him surviving a female relative specified in Class I, or a male relativepecified in that Class who claims through such female relative; and · When the deceased has not made aestamentary disposition of his

ndivided share in the coparcenary property.

s pointed out above that the main provision of this section deals with the devolution of the interest of aoparcener dying intestate by the rule of survivorship and the proviso speaks of the interest of the deceased initakshara Coparcenary Property. Now, in order to ascertain what is the interest of the deceased coparcener, oecessarily needs to keep in mind the two Explanations under the proviso. These two Explanations give theecessary assistance for ascertaining the interest of the deceased coparcener in the Mitakshara Coparcenaryroperty. Explanation I provides for ascertaining the interest on the basis of a notional partition by applying action as if the partition had taken place immediately before the death of the deceased coparcener. Explanatioys down that a person who has separated himself from the coparcenary before the death of the deceased or af the heirs of such divided coparcener is not entitled to claim on intestacy a share in the interest referred to in ection.

nder the proviso if a female relative in class I of the schedule or a male relative in that class claiming throughuch female relative survives the deceased, then only would the question of claiming his interest by successionrise. The Supreme Court in 1978 Gurupad v. Heerabai and reiterated later in 1994 in Shyama Devi v. Manjuhukla wherein it has been held that the proviso to section 6 gives the formula for fixing the share of the claimand the share is to be determined in accordance with Explanation I by deeming that a partition had taken placettle before his death which gives the clue for arriving at thehare of the deceased.Section 6 can further be understood by the following-Example: If ?C? dies leaving behindwo sons only, and no female heirs of class I then property of ?C? passes to his sons by survivorship since thereo female relatives like daughter or any other member specified in the class I of first schedule. In case ?C? dies

eaving behind two sons and three daughters, then property of ?C? will pass on to his sons and daughters byuccession in the following manner.

rstly property of "C" is divided between "C" and his two sons. The shares of "C" and his two sons are, C gets ohird and each son one-third.

he sons are entitled to the equal share of the property along with the father. But the daughters are entitled to hare in the share of the deceased ?C? along with other sons. So the sons will get one-third of the property andhare, which is one-fifth in the share of deceased ?C?. Hence the daughter does not take equal share with the s

owever, section 6 did not interfere with the special rights of those who are members of a Mitakshara coparcenxcept to provide rules for devolution of the interest of a deceased in certain cases. The Act lays down a unifor



nd comprehensive system of inheritance and applies, interalia, to persons governed by Mitakshara andayabhaga Schools as also to those in certain parts of southern India who were previously governed by theurumakkattayam, Aliyasantana and Nambudri Systems. The Act applies to any person who is a Hindu as defin

n section 2 of HSA . But now the question the question is whether, the Hindu Succession Act actually gave womn equal right to property or did it only profess to do so. Significantly, the provisions regarding succession in th

indu Code Bill, as originally framed by the B.N.Rau Committee and piloted by Dr.Ambedkar, was for abolishingitakshara coparcenary with its concept of survivorship and the son's right byirth in a joint family property and substituting it with the principle of inheritance by succession. These proposa

met with a storm of conservative opposition. The extent of opposition within the Congress or the then governmself can be gauged from the fact that the then Law Minister Mr.Biswas, on the floor of the house, expressedimself against daughters inheriting property from their natal families.

he retention of the Mitakshara coparcenary without including females in it meant that females couldn't inheritncestral property as males do. If a joint family gets divided, each male coparcener takes his share and femaleset nothing. Only when one of the coparceners dies, a female gets a share of his share as an heir to the deceashus the law by excluding the daughters from participating in coparcenary ownership (merely by reason of theiex) not only contributed to an inequitygainst females but has led to oppression and negation of their right to equality and appears to be a mockery o

he fundamental rights guaranteed by the Constitution.

ence this very fact necessitated a further change in regards to the property rights of women, and which was dy the Hindu Succession (Amendment) Bill, 2004.

he State Amendmentshe idea of making a woman a coparcener was suggested as early as 1945 in written statements submitted to indu Law Committee by a number of individuals and groups; and again in 1956, when the Hindu Succession Bas being finally debated prior to its enactment an amendment was moved to make a daughter and her childre

members of the Hinduoparcenary in the same way as a son or his children. But this progressive idea was finally rejected and theitakshara Joint family was retained.

he concept of the Mitakshara coparcenary property retained under section 6 of the HSA has not been amendever since its enactment. Though, it is a matter of some satisfaction that five states in India namely, Kerala,ndhra Pradesh, Tamil Nadu, Maharashtra and Karnataka have taken cognizance of the fact that a woman neede treated equally both in the economic and the social spheres. As per the law of four of these states, (Keralaxcluded), in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth becocoparcener in her own right in the same manner as the son. Kerala, however, has gone one step further and

bolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on themere fact that he or she was born in the family. In fact, it has abolished the Joint Hindu family system altogethencluding the Mitakshara, Marumakkattayam, Aliyasantana and Nambudri systems. Thus enacting that joint tene replaced by tenants in common.A list of the legislation passed by the five states is set out below andhe legislation is annexed as Annexed "1"

The Joint Hindu Family System (Abolition) Act, 1975, Kerala.The Hindu Succession (Andhra Pradesh Amendment) Act, 1986.The Hindu Succession (Tamil Nadu Amendment) Act, 1989.The Hindu Succession (Karnataka Amendment) Act, 1994.The Hindu Succession (Maharashtra Amendment) Act, 1994.

he Hindu Succession (Amendment) Act, 2005he Hindu Succession (Amendment) Act, 2005 was seeks to make two major amendments in the Hindu Succesct, 1956. First, it is proposed to remove the gender discrimination in section 6 of the original Act. Second, it



roposes to omit section 23 of the original Act, which disentitles a female heir to ask for partition in respect of awelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective sharesherein. However in the instant projecte have focused specifically on the changes brought in Section 6 in regards to the position of woman and has

made a clause-by-clause consideration of the section thus amended.

ection 6 of the Hindu Succession Act, 1956 has been restated for convenience-evolution of interest in coparcenary property. - When a male Hindu dies after the commencement of this Act,aving at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shevolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:rovided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a melative specified in that class who claimshrough such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolvestamentary or intestate succession, as the case may be and not by survivorship.

xplanation 1. For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemede the share in the property that would have been allotted to him if a partition of the property had taken place

mmediately before his death, irrespective of whether he was entitled to claim partition or not.

xplanation 2. Nothing contained in the proviso to this section shall be construed as enabling a person who heparated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestashare in the interest referred to therein.

he Hindu Succession (Amendment) Act, 2005-(l). Devolution of interest in coparcenary property.

1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu familyoverned by the Mitakshara law, the daughter of a coparcener shall,--a) by birth become a coparcener in her own right the same manner as the son ;b) have the same rights in the coparcenary property as she would have had if she had been a son;

c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any refereo a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Providhat nothing contained in this sub-section shall affect or invalidate any disposition or alienation including anyartition or testamentary disposition of property which had taken place before the 20th day of December, 2004

2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with ncidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or anther law for the time being in force in, as property capable of being disposed of by her by testamentarysposition.

3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest he property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestateuccession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be

eemed 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 alivehe time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceasedaughter; andc) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, as such child wouldave got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceasehild of the pre-deceased so or a pre-deceased daughter, as the case may be.



xplanation.-- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall beeemed to be the share in the property that would have been allotted to him if a partition of the property hadaken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any rig

roceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfathereat-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or grrandson to discharge any such debt: Provided that in the case of any debt contracted before the commencemf the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect--

a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; orb) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall bnforceable under the rule of pious obligation in the same manner and to the same extent as it would have beenforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

xplanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall beeemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior toommencement of the Hindu Succession (Amendment) Act, 2005.

5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of ecember 2004.xplanation- For the purposes of this section "partition" means any partition made by execution of a deed of artition duly registered under the Registration Act, 1908 or partition affected by a decree of a court.

ection 6 seeks to make the daughter a coparcener by birth in a joint Hindu family governed by the Mitaksharaw, subject to the same liabilities in respect of the said coparcenary property as that of a son.

aws reflect the face of society and its evolution over the time. To respond to the needs of a dynamic socialystem, laws have to be changed and amended, at regular intervals. As far as the basic objective of the Act is temove gender discriminatory practices in the property laws of the Hindus, whereby daughters have been give

he status of coparcenersn the Mitakshara joint family system. However, the position of other Class I female heirs should not suffer as aesult of this move.

owever, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenaxcept to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down aniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitaksharnd Dayabhagachools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. It isroposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving eqghts to daughters inhe Hindu Mitakshara coparcenary property as the sons have.

hanges Brought In The Position Of The Women (Specifically Focusing On Section 6)ut of many significant benefits brought in for women, one of the significant benefit has been to make womenoparcenary (right by birth) in Mitakshara joint family property. Earlier the female heir only had a deceased maotional portion. With this amendment, both male and female will get equal rights.

n a major blow to patriarchy, centuries-old customary Hindu law in the shape of the exclusive male mitaksharaoparcenary has been breached throughout the country.

he preferential right by birth of sons in joint family property, with the offering of "shradha" for the spiritual ben



nd solace of ancestors, has for centuries been considered sacred and inviolate. It has also played a major role he blatant preference for sons in Indian society. This amendment, in one fell swoop, has made the daughter a

member of the coparcenary and is a significant advancement towards gender equality.

he significant change of making all daughters (including married ones) coparceners in joint family property - h

een of a of great importance for women, both economically and symbolically. Economically, it can enhanceomen's security, by giving them birthrights in property that cannot be willed away by men. In a male-biasedociety where wills often disinherit women, this is a substantial gain. Also, as noted, women can become kartashe property. Symbolically, all this signals thataughters and sons are equally important members of the parental family. It undermines the notion that after

marriage the daughter belongs only to her husband's family. If her marriage breaks down, she can now return ter birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and socialorth and give her greater bargaining power for herself and her children, in both parental and marital families.

ow under the amendment, daughters will now get a share equal to that of sons at the time of the notionalartition, just before the death of the father, and an equal share of the father's separate share. Equal distributif undivided interests in co-parcenery property. However, the position of the mother vis-à-vis the coparcenarytays the same. She, not being a member of the coparcenary, will not get a share at the time of the notional

artition. The mother will be entitled to an equal share with other Class I heirs only from the separate share of tather computed at the time of the notional partition. In effect, thectual share of the mother will go down, as the separate share of the father will be less as the property will nowqually divided between father, sons and daughters in the notional partition.

ome Anomalies Still Persistome other anomalies also persist-. One stems from retaining the Mitaksara joint property system. Making daughters coparceners will decrease thares of other Class I female heirs, such as the deceased's widow and mother, since the coparcenary share of eceased male from whom they inherit will decline. In States where the wife takes a share on partition, as inaharashtra, the widow's potential share will now equal the son's and daughter's. But where the wife takes no

hare on partition, as in Tamil Nadu or Andhra Pradesh, the widow's potential share will fall below the daughter

. Co-parcenary remains a primary entitlement of males; the law, no doubt provides for equal division of the mao-parcener's share on his death between all heirs, male and female; still, the law puts the male heirs on a highooting by providing that they shall inherit an additional independent share in co-parcenary property over andbove what they inherit equally with female heirs; the very concept of co-parcenary is that of an exclusive male

membership club and therefore should be abolished.

ut such abolition needed to be dovetailed with partially restricting the right to will (say to 1/3 of the property)uch restrictions are common in several European countries. Otherwise women may inherit little, as wills oftenisinherit them. However, since the 2005 Act does not touch testamentary freedom, retaining the Mitaksaraystem and making daughters coparceners, while not the ideal solution, at least provides women assured shareint family property (if we include landholdings, the numbers benefiting could be large). 3. If a Hindu female di

ntestate, her property devolves first to husband's heirs, then to husband's father's heirs and finally only to

mother's heirs; thus the intestate Hindu female property is kept within the husband's lien.

nother reason for having an all India legislation is that if the Joint Family has properties in two states, one whicoverned by the Amending Act and the other not so governed, it may result in two Kartas, one a daughter and ther a son. Difficulties pertaining to territorial application of Amending Act will also arise. Thus is the need for l India Act or Uniform Civil Code more immediate.

onclusionhe Preamble to the Amending Acts indicates the objective as the removal of discrimination against daughters



nherent in the mitakshara coparcenary and thereby eradication of the baneful system of dowry by positivemeasures thus ameliorating the condition of women in the human society.

is necessary to understand that if equality exists only as a phenomenon outside the awareness and approval he majority of the people, it cannot be realized by a section of women socialized in traditions of inequality. Thu

here is need to social awareness and to educate people to change their attitude towards the concept of gendequality. The need of the hour is also to focus attention on changing the social attitudes in favour of equality foy enacting a uniform law.

he difficult question of implementing the 2005 Act remains. Campaigns for legal literacy; efforts to enhance sowareness of the advantages to the whole family if women own property; and legal and social aid for womeneeking to assert their rights, are only a few of the many steps needed to fulfill the change incorporated in the A

Can Women be Karta?


Manisha Garg and Neha Nagar - Students 2nd yr NLIU, Bhopal

ntroductionhe Karta of a Hindu joint Family in Hindu Law is the senior most member of the family entitled to manage famffairs, in his absence the next eldest male member after him is entitled to be the Karta. A Karta is the caretakehe whole family and looks after the welfare of all the members of the family. His relationship with other memb

a relationship of trust and confidence.

t least one male member is necessary to constitute a coparcenary. But the question arises that if no malemember is left in the family or if all male members are minors then who becomes the Karta ? or Can a femalemember of a Hindu Joint Family become a Karta then in such circumstances ? this situation makes us rely onarious judicial pronouncements which have dealt with this question. The view of the judiciary is inconsistent.

ow when a major step towards ending gender discrimination and to stop the gender-bias prevalent in families o improve adverse condition of women in society has been taken in the form of The Hindu Succession Amendm

ct,2005 . This amendment has conferred equal property rights on daughters as well. Now the daughters by biill acquire rights over coparcenary property.

arlier women were not included as coparcenary members, and according to the Hindu sages only a coparcenean become a karta, and therefore they could not be the Karta.

ut now because of the changed position of daughters as coparceners the situation is in favour of possibility of






omen becoming Karta. There are diverse views of the Courts on this point.

n our project we have tried to explain the position of women in relation to that of a Karta, we have also, by goihrough case-laws and judicial pronouncements. Our Project is divided in parts. The First part deals with historicackground. The second part deals with can women be a karta. The third part deals with arguments for and ag

f women as Karta. The Last part is a synthesis of the arguments advanced ie the conclusion.

ackgroundnce ancient times the framing of all property laws have been exclusively for the benefit of man, and woman heen treated as subservient, and dependent on male support. The right to property is important for the freedomnd development of a human being.

Position prior to the Act of 1956indus were governed by Shastric and Customary laws which varied from region to region and sometimes it va

n the same region on a caste basis. As the country is vast and communications and social interactions in the paere difficult, it led to a diversity in the law. Consequently, in matters of succession also, there were differentchools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat andarumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The

multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laven mere complex. A woman in a joint Hindu family, consisting both of man and woman, had a right toustenance, but the control and ownership of property did not vest in her. No female is a member of theoparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship withe coparcenary. This means that with every birth or death of a male in the family, the share of every otherurviving male either gets diminished or enlarged.

he Mitakshara law also recognises inheritance by succession but only to the property separately owned by anndividual, male or female. Females are included as heirs to this kind of property by Mitakshara law.

efore the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila sub schools of itakshara recognised only five female relations as being entitled to inherit namely - widow, daughter, mother

aternal grandmother, and paternal great-grandmother.

he Madras sub-school recognised the heritable capacity of a larger number of females heirs that is of the son'saughter, daughter's daughter and the sister, as heirs who are expressly named as heirs in Hindu Law of

nheritance (Amendment) Act,1929. The son's daughter and the daughter's daughter ranked as bandhus inombay and Madras. The Bombay school which is most liberal to women, recognised a nunmber of other femaleirs, including a half sister, father's sister and women married into the family such as stepmother, son's widowrother's widow and also many other females classified as bandhus.

During the British Regimeowever, during the British regime, the country became politically and socially integrated, but the Britishovernment did not venture to interfere with the personal laws of Hindus or of other communities. During thiseriod, however, social reform movements raised the issue of amelioration of the woman's position in society. T

arliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. Tct, conferred inheritance rights on three female heirs i.e. son's daughter, daughter's daughter and sister (therreating a limited restriction on the rule of survivorship). Another landmark legislation conferring ownership righn woman was the Hindu Women's Right to Property Act (XVIII of ) 1937. This Act brought about revolutionaryhanges in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in thef partition, alienation of property, inheritance and adoption.

he Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. he widow did not become a coparcener even though she possessed a right akin to a coparcenary interest in th



roperty and was a member of the joint family. The widow was entitled only to a limited estate in the property he deceased with a right to claim partition. A daughter had virtually no inheritance rights. Despite thesenactments having brought important changes in the law of succession by conferring new rights of succession ertain females, these were still found to be incoherent and defective in many respects and gave rise to a numbf anomalies and left untouched the basic features of discrimination against women. These enactments now sta

epealed.

The Indian Constitutionhe framers of the Indian Constitution took note of the adverse and discriminatory position of women in societynd took special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) an3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriatercumstances provide a free hand to the State to provide protective discrimination in favour of women. Theserovisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contaihe Directive Principles which are no less fundamental in the governance of the State and inter-alia also providehat the State shall endeavour to ensure equality between man and woman Notwithstanding these constitution

mandates/directives given more than fifty years ago, a woman is still neglected in her own natal family as well n the family she marries into because of blatant disregard and unjustified violation of these provisions by somehe personal land.

Position after the enactment of Hindu Succession Act,1955he Hindu Succession Act,1955 reformed the Hindu personal law and gave woman greater property rights, alloer full ownership rights instead of limited rights in property. The daughters were also granted property rights iheir father's estate. In the matter of succession to the property of a Hindu male dying intestate, the Act lays doset of general rules in sections 8 to 13. Sections 15 and 16 of the Act contain separate general rules affecting

uccession to the property of a female intestate. Social justice demands that a woman should be treated equalloth in the economic and the social sphere.

iscrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by egislature itself. This is particularly so in relation to laws governing the inheritance/succession of property amohe members of a Joint Hindu family. It seems that this discrimination is so deep and systematic that it as placeomen at the receiving end.

Position after the amendment in the Succession Acthe Law Commission was concerned with the discrimination inherent in the Mitakshara coparcenary under Sectof the Hindu Succession Act, as it only consists of male members. The Commission in this regard ascertained

pinion of a cross section of society in order to find out, whether the Mitakshara coparcenary should be retainerovided in section 6 of the Hindu Succession Act, 1956, or in an altered form, or it should be totally abolished.here were other questions involved also, like should women be karta in absence of male members ? Theommission's main aim was to end gender

iscrimination which is apparent in section 6 of the Hindu Succession Act,1956, by suggesting appropriatemendments to the Act. Accordingly, the amendment was made by the legislature in December 2004 and itonferred equal property share from the ancestral property on the daughter. By birth a daughter would acquire

roperty rights and would be like any other coparcenary.

n the face of such multiplicity of succession laws diverse in their nature, property laws continued to be complend discriminatory against women. The social reform movement during the pre-independence period raised thesue of gender discrimination and a number of ameliorative steps were initiated.

an Women Be Karta ?questionnaire was issued by the Law Commission to elicit the views of the public regarding giving of rights to

aughter in the Mitakshara property of a Hindu undivided family. This questionnaire consisted of three parts ha



1 questions. Sixty-Seven respondents have replied to the questionnaire.1 30 respondents were from therofession of law and the rest comprise sociologists, NGOs etc. About the case of Daughter becoming a Karta inint Family, about half the respondents wanted the daughter to become a Karta in the Joint Family. The normaosition of law does not give such a right to a women except under special circumstances. If such a right isanctioned by law then what will be the pros and cons ? or why should we sanction such a right, for what reaso

hould a women be allowed to become the manager of a joint family? To answer all these questions we will havook into arguments which favour the women becoming a Karta and the arguments which do not favour such asposition.

rguments In Favour Making her the Karta would make her position more respectableespite the Constitution guaranteeing equality to women, there are still many discriminatory aspects in the Hinw in the sphere of property rights. In our society maltreatment of a woman in her husband's family, e.g. for fa

o respond to a demand of dowry, often results in her death. But the tragedy is that there is discriminatoryeatment given to her even by the members of her own natal family. Thus, if she is made the Karta of the fam

hen all the members of the family will respect her because of her position and women abuse will be controlledhis will enhance her self-confidence and social worth and give her greater bargaining power for herself and hehildren, in both parental and marital families.

After The Hindu Succession Amendment Act, 2005 women are recognized as coparceners.n the Hindu system, ancestral property has traditionally been held by a joint Hindu family consisting of maleoparceners. Coparcenary as seen and discussed earlier in the present work is a narrower body of persons withoint family and consists of father, son, son's son and son's son's son. A coparcenary can also be of a grandfathend a grandson, or of brothers,or an uncle and nephew and so on. Thus ancestral property continues to beoverned by a wholly partrilineal regime, wherein property descends only through the male line as only the ma

members of a joint Hindu family have an interest by birth in the joint or coparcenary property. Since a womanould not be a coparcener, she was not entitled to a share in the ancestral property by birth. A son's share in throperty in case the father dies intestate would be in addition to the share he has on birth. But after themendment daughters have from birth coparcenary rights. So they can be kartas as they are now recognized a

oparcenors.

Women are fully capable of managing a business, taking up public life as well as manage large families asmothers.here is still a reluctance to making her a Karta as the general male view is that she is incapable of managing troperties or running the business and is generally susceptible to the influence of her husband and his family, i

married. This seems to be patently unfair as women are proving themselves equal to any task and if women arenfluenced by their husbands and their families, men are no less influenced by their wives and their families.

This will end gender discrimination in Mitakshara coparcenary by including daughters in the system. Since thrl will be the equal inheritor of her ancestral property, the in-laws may not insist on dowry.2

It is being suggested that the family dwelling will not be "alienated" without her express consent. Thus will mer position stronger. She will now become a member equal to that as any other male member.

Such an act will spread awareness and increase literacy among women as they will be involved in family affand they will have a say in business.

rguments Against Women Becoming KartaDaughters cannot be made karta as they live away from joint family after their marriage the daughter-in-law

ot also originally belong to their in-law’s family, and therefore their possibility of becoming a karta is also ruled



ut.

If women are made karta then this will lead to involvement of women in business affairs this will leado disturbed domestic affairs.

The women of a house-hold are usually busy with their domestic work, even if they are made karta they will n the advice of family members and in most cases where the woman is illiterate then it will just lead to idle

members of the joint family prospering at the expense of the hard-working?

What will be the work of the male members if female members of a joint family are made karta.

Women are incapable of managing properties or agriculture, they are incapaable of running a business.

If women are made karta will they be entitled to any kind of maintenance ? this the key issue of the problemshich is to be answered.

he Judicial View

he possibility of female being the Karta in presence of senior male member is being ruled out. But the questiohether in the absence of the manager, whether by prolonged journeys abroad or by dying without leavingnother manager to succeed him in his function, a female could act as a manager. No doubt, it is true that he cct as guardian of Hindu Minors by the Hindu Minority and Guardianship act, 1956 but it abstains her from

nterfering with the exclusive powers of managers to deal with the interests of minors in the Joint Family Proper

o, the solution lies in our religious text which is Dharmashastra. It says that alienation can be done by the wifen absent, or the widow of a dead manager, of family property belonging to numerous minors, unable to enter ontractual relationships in their own persons, yet reasonable for maintaining dependants and carrying the variurdens of the family. Here, the benefit of the family is the touchestone, not the identity of the alienor. The actfemale member acting as a manager should be positive for the benefit of the Family. Such acts will be binding

pon the manager when he returns or appears on the scene by simply coming of age as the case may be. It isurther supported by Katyana, Smritichandrika, Bhavasvamin and Yagnavalyka Smriti. Some of the Sanskrit tex

ays -

"sishyantevasi-dasa-stri-vaiyavrittyakarais ca yat Kutumbahetor ucchinam vodhavyam tat Kutumbina"

he manager (or householder, actual or eventual) is liable to accept (or admit) all alienations made for theurposes of the Family by a pupil, apprentice, slave, wife, agent or bailiff.

Narada says-"Na ca bharya-kritam rinam kathancit patyur abhavet Apat kritad rite, pumsam kutumbartho hi vistarah"

debt contracted by his wife never binds the husband, except that incurred in a time of distress: expenses for enefit of the family fall upon males.

ven at this objection is being raised, ‘Are not women declared by the sastra to be incapable, or unfit forndependence?” Wherever a male member of the family is available, his signature should be taken rather than f any female’s acts. But the answer lies in the following statement. The women in question is de facto svantans soon as the husband returns or her son reaches majority she becomes partantra again, but meanwhile theesponsibility rests with her, and powers should obviously be allowed to her accordingly.

he Case Laws- In Supporthe Nagpur position



n Hunoomanpersaud’s case3 which was one of the greatest cases in the history of Hindu Law dealt with theowers of a widow mother as manager of property of her minor son, and was in reality a case in the context of

manager ship rather than guardianship properly so called. The test of the lady’s act was not who she was or inhat capacity she purported to act, but whether the act was necessary or in the minor’s interest as understood

he law.

n Pandurang Dahake v. Pandurang Gorle4, there the widowed mother passed a promissory note for necessity auardian of her two minor sons. She was a defacto manager and was held to have managerial powers, and theons could not repudiate the debt.

n I.T Commr. v. Lakshmi Narayan5, the mother as karta of the undivided family consisting of herself and her twminor sons entered into a partnership renewing thereby the partnership which her late husband had had with hrother. The court said that at Dayabhaga law woman could be coparcener and so possibly even managers, andoted that a female might be the manager of a religious endowment. The Act of 1937 has improved the status he Widow.

he Madras Positionn Seethabai v.. Narasimha6 there the widows claimed that they were undivided members of the coparcenery bhe operation of the act of 21937. They objected to the appointment of a guardian for the property of the minohe court appointed one widow guardian of one of the minor and a stranger was appointed the guardian of thether. None of the widows it was held that could be a manager. To be a manager one must be a pukka coparcemale with a birth right and not a mere statuary interest. In Radha Ammal v. I.Tcommissioner,7 Madras a moth

uardian of minor sons , purported to execute a deed of partnership admitting a stranger as a power in thencestral business. It was held that this was outside her powers and the deed could not be registered under sec6(a) of the Income Tax Act 1922. A woman could not be a manager. The argument that Hunoomanpersaud’sase8 allowed the act of a de-facto manager to be binding even if she were a woman, was not decided, much lexamined. This was a weak case in Madras decision which was in any case strictly formal and anti-Quarin inpproach.

he Bombay High Court

n Rakhmabai v. Sitabai9 that a step mother as manager of a Joint Family consisting of her co-widow and minortep-son and a minor step daughter and had the power to resist the appointment of a guardian of the property he step-son. She was the managing the estate and her authority should not, it was urged be undermined by sun appointment. The learned court said that the proper course was to appoint a guardian for the coparceneryroperty. A widow could not be a manager of Joint Family Property. The case of Seethabai was agreed with.

he Orissa High Court-n Maguni Padhano v. Lokananidhi Lingaraj10, it was held that a mother, whose husband is alive, cannot be amanager. She might indeed act as guardian of her son, if her husband was dead and perhaps as defacto guardi

ut as manager she had no powers whatever. Laxmi Narayan’s case was not followed. The Principle that a womould be a manager was decisively rejected.

he Patna High Court

n Sheogulam v. Kishun Chaudhari11, the court denied that a mother of a minor son, during the long absence oer husband , might act as karta and incur debts for family purposes. All such debts would not be binding uponamily. The case of Maguni was relied upon.

n the surface it might seem that Madras has the best of it. But a further examination makes us hesitate. Theatural desire that deserted mothers and widows should have ample powers to look after their minor son’s

nterest, acting for necessity or the benefit of the Family, has expressed itself, as things will, in an irregular wayeeing that it was frustrated in expressing itself in some quartes in a regular way.



he Minor’s Manager Mare Nestome are also of the view that can a minor be a manager. It is hardly possible as the word manager means oneho can make an alienation of property, one who can incur debts that will bind the family. The word is also capf meaning the one who handles the affairs of the family. Internally, domestically, a minor may well be a managut he is not a manager vis-a vis the outside world.

onclusion:nder the Shastric Law, a daughter on marriage ceases to be a member of the parental family, but the Amendicts have changed her position, which is quite alien to Hindu patriarchal notions. Though her position as defact

manager was recognized when mothers acted as guardians of their minor sons after the death of their husbandhe dejure conferment of the right eluded her.

he law commission also has rightly observed that although the Hindu Succession Amendment Act, 2005 hasonferred upon the daughter of a coparcener status but there is still a reluctance to making her a Karta. Thiseems to be patently unfair as women are proving themselves equal to any task.

ince they can act as coparcenaries then they must also be given the powers of Karta. The shastra is clear thathe absence of senior member a junior member (if he has reached the age of legal competence) may incur debor the needs of the family, and in the absence of a male member a female member may do so. The Sanskriticexts empower women to act as Karta in instances like when the husband is away or missing or the son is yet tttain majority.

quality for women is not just a matter of equity for the so-called weaker sex, but a measure of the modernity ondian society and the pragmatic nature of our civilization.



Whether Amendments Made To The Hindu Succession Act Are Achieving GQuality?


Romit Agrawal, 4th year student, GNLU, Gandhinagar

he United Nation's Report in 1980 presented that:Women constitute half the world's population, perform nearly two-thirds of its hours, receive one-tenth of theorld's income and less than one ?hundredth of the property."

nce time immemorial the framing of all laws have been exclusively for the benefit of man, and woman has beeated as subservient, and dependent on male support. The right to property is important for the freedom andevelopment of a human being. Prior to the Hindu Succession Act, 1956 shastric and customary laws that varieom region to region governed Hindus and sometimes it varied in the same region on a caste basis resulting inversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga inengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri erala and Mitakshara in other parts of India with slight variations The multiplicity of succession laws in India,verse in their nature, owing to their varied origin made the property laws even mere complex. Earlier, womanjoint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownersh

f property did not vest in her. In a patrilineal system, like the Mitakshara school of Hindu law, a woman, was noiven a birth right in the family property like a son.

iscrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by egislature itself. This is particularly so in relation to laws governing the inheritance/succession of property amohe members of a Joint Hindu family. It seems that this discrimination is so deep and systematic that it has placomen at the receiving end. Recognizing this the Law Commission [1] in pursuance of its terms of reference,hich, inter alia, oblige and empower it to make recommendations for the removal of anomalies, ambiguities a

nequalities in the law, they decided to undertake a study of certain provisions regarding the property rights of






indu women under the Hindu Succession Act, 1956.

ackgroundwoman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control

wnership of property did not vest in her. In a patrilineal system, like the Mitakshara school of Hindu law, a wom

as not given a birth right in the family property like a son. Under the Mitakshara law, on birth, the son acquireght and interest in the family property. According to this school, a son, grandson and a greatgrandson constitclass of coparcenars, based on birth in the family. No female is a member of the coparcenary in Mitakshara lander the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This mean

hat with every birth or death of a male in the family, the share of every other surviving male either getsminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of theroperty. If another son is born in the family, automatically the share of each male is reduced to one fourth.

he Mitakshara law also recognises inheritance by succession but only to the property separately owned by anndividual, male or female. Females are included as heirs to this kind of property by Mitakshara law. Before theindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila subschools of Mitakshara

ecognised only five female relations as being entitled to inherit namely - widow, daughter, mother, paternalrandmother, and paternal great-grandmother [2]. The Madras sub-school recognised the heritable capacity of

rger number of females heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who axpressly named as heirs in Hindu Law of Inheritance (Amendment) Act, 1929 [3]. The son's daughter and theaughter's daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal toomen, recognised a number of other female heirs, including a half sister, father's sister and women married in

he family such as stepmother, son's widow, brother's widow and also many other females classified as bandhu

he Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint properecognized. It lays down only one mode of succession and the same rules of inheritance apply whether the fadivided or undivided and whether the property is ancestral or selfacquired. Neither sons nor daughters becom

oparceners at birth nor do they have rights in the family property during their father's life time. However, on heath, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters aet equal shares along with their brothers. Since this ownership arises only on the extinction of the father'swnership none of them can compel the father to partition the property in his lifetime and the latter is free to gr sell the property without their consent. Therefore, under the Dayabhaga law, succession rather than survivorthe rule. If one of the male heirs dies, his heirs, including females such as his wife and daughter would becom

members of the joint property, not in their own right, but representing him. Since females could be coparcenershey could also act as kartas, and manage the property on behalf of the other members in the Dayabhaga Schoowever, during the British regime, the country became politically and socially integrated, but the Britishovernment did not venture to interfere with the personal laws of Hindus or of other communities. During thiseriod, however, social reform movements raised the issue of amelioration of the woman's position in society.

he earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 192his Act, conferred inheritance rights on three female heirs, i.e., son's daughter, daughter's daughter and sisterhereby creating a limited restriction on the rule of survivorship). Another landmark legislation conferringwnership rights on woman was the Hindu Women's Right to Property Act (XVIII of) 1937.

his Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in tw of coparcenary but also in the law of partition, alienation of property, inheritance and adoption. [4] The Act937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the wiid not become a coparcener even though she possessed a right akin to a coparcenary interest in the propertyas a member of the joint family. The widow was entitled only to a limited estate in the property of the deceaseith a right to claim partition [5]. A daughter had virtually no inheritance rights. Despite these enactments havrought important changes in the law of succession by conferring new rights of succession on certain females,hese were still found to be incoherent and defective in many respects and gave rise to a number of anomalieseft untouched the basic features of discrimination against women. These enactments now stand repealed.



he framers of the Indian Constitution took note of the adverse and discrimnatory position of women in societyook special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) and (3)nd 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriatercumstances provide a free hand to the State to provide protective discrimination in favour of women. Theserovisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contai

he Directive Principles which are no less fundamental in the governance of the State and inter alia also providehat the State shall endeavor to ensure equality between man and woman. Notwithstanding these constitutiona

mandates/directives given more than fifty years ago, a woman is still neglected in her own natal family as well n the family she marries into because of blatant disregard and unjustified violation of these provisions by somehe personal laws. Pandit Jawaharlal Nehru, the then Prime Minister of India expressed his unequivocalommitment to carry out reforms to remove the disparities and disabilities suffered by Hindu women. As aonsequence, despite the resistance of the orthodox section of the Hindus, the Hindu Succession Act, 1956 wasnacted and came into force on 17th June, 1956. It applies to all the Hindus including Buddhists, Jains and Sikhys down a uniform and comprehensiye system of inheritance and applies to those governed both by theitakshara and the Dayabahaga Schools and also to those in South India governed by the the Murumakkattayaliyasantana, Nambudri and other systems of Hindu Law.

he Hindu Succession Act, 1956 : - Gender Position Before 2005 Amendment

he very preamble of the Act signifies that an Act to amend and codify t law relating to intestate succession amindus. The Act aims to lay down an uniform law of succession whereas attempt has been made to ensure equa

nheritance rights between sons and daughters. It applies to all Hindus including Budhists, Jains and Sikhs. It layown an uniform and comprehensive system of inheritance and .applies to those governed by the Mitakshara aayabha schools as well as other [6] schools. The Hindu Succession Act reformed the Hindu personal law and gomen greater property rights, allowing her f ownership rights instead of limited rights in property.

he daughters were also granted property rights in their father's estate. In the matter of succession of propertyHindu male dying intestate, the Act lays, down a set of general rules in sections 8 to 13. Sections 15 and 16 o

he act contain separate general rules affecting succession to the property of a fem intestate. Under section 8 ohe Act three Classes [7] of heirs recognized by Mitakshara Law and three Classes[8] of heirs recognised byayabhaga Law cease exist in case of devolution taking place after coming into force of the Act. The heirs areivided into instead, four Classes viz:

) Heirs in Class I of the Schedulei) Heirs in Class II of the Scheduleii) Agnates, andv) Cognates.

f course mother, widow, son and daughter are primary heirs. In the absence of Class I heirs, the propertyevolves on Class II heirs and in their absence first on agnates and then on cognates. Still some sections of the ame under criticism evoking controversy as being favourable to continue inequality on the basis of gender. Onuch provision has been the retention of mitakshara coparcenary with only males as coparceners [9].

s per the Law Commission Report, coparcenary constitutes a narrower body of persons within a joint family anonsists of father, son, son's son and son's son's son. Thus ancestral property continues to be governed by a whatrilineal regime, wherein property descends only through the male line as only the male members of a Jointindu Family have an interest by birth in the coparcenary property, in contradiction with the absolute or separaroperty of an individual coparcener, devolve upon surviving coparceners in the family, according to the rule ofevolution by survivorship. Since a woman could not be a coparcener, she was not entitled to a share in thencestral property by birth.Section 6 of the Act, although it does not interfere with the special rights of I those wre members of a mitaksltara coparcenary, recognises, without abolishing joint family property, the right uponeath of a coparcener, of certain members of his preferential heirs to claim an interest in the property that wouave been allotted to such coparcener if a parititon [10] of the joint family property had in fact taken place

mmediately before his death.



hus section 6 of the Act, while recognising the rule of devolution by survivorship among the members of theoparcenary, makes an exception to the rule in the proviso. According to the proviso, if the deceased has left aurviving female relative specified in Class I of the Schedule I or a male relative specified in that Class who claimhrough such female relation, the interest of a deceased in mitakshara coparcenary property shall devolve byestamentary of intestate succession under the Act and not as survivorship [11]. Thus non-conclusion of women

oparceners in the joint family property under the mitakshara system as reflected in section 6 of the Act relatinevolution of interest in coparcenary property, has been under criticism for being violative of the equal rights oomen guaranteed under the Constitution in relation to property rights. This means that females cannot inherincestral property as males do. If a joint family gets divided, each male coparcener takes his share and femaleset nothing. Only when one of the coparceners dies, a female gets share of his interest as an heir to the deceasurther as per the proviso to section 6 of the Act, the interest of the deceased male in the mitakshara coparcenevolve by intestate succession firstly upon the heirs specified in Class I of Schedule I. Under this Schedule there only four primary heirs, namely son, daughter, widow and mother. For the remaining eight, the principle of epresentation goes up to two degrees in the male line of descent. But in the female line of descent, it goes onlpto one degree. Thus the son's son's son and the son's son's daughter get a share but a daughter's daughter'son and daughter's daughter's daughter do not get anything.

gain as per section 23 of the Act married daughter is denied the right to residence in the parental home unles

idowed, deserted or separated from her husband and female heir has been disentitled to ask for partition inespect of dwelling house wholly occupied by members of joint family until the male heirs choose to divide theirespective shares therein. These provisions have been identified as major sources of disabilities thrust by law ooman. Another controversy is the establishment of the right to will the property. A man has full testamentaryower over his property including his interest in the coparcenary.

n the whole the Hindu Succession Act [12] gave a weapon to a man to deprive a woman of the rights she earlad under certain schools of Hindu Law. The legal right of Hindus to bequeath property by way of will wasonferred by the Indian Succession Act, 1925.

he Hindu Succession (Amendment) Act, 2005 - A Prologue:his amending Act of 2005 is an attempt to remove the discrimination as contained in the amended section 6 ohe Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu mitakshara coparcenary propes to sons have. Simultaneously section 23 of the Act as disentitles the female heir to ask for partition in respecwelling house wholly occupied by a Joint Family until male heirs choose to divide their respective shares thereas omitted by this Amending Act. As a result the disabilities of female heirs were removed. ?This is a great ste

he government so far the Hindu Code is concerned.

his is the product of 174th Report of the Law Commission of India on "Property Rights of Women: Proposedeform under the Hindu Law". First, the 2005 act, by deleting a major gender discriminatory clause - Section 4 f the 1956 HSA - has made women's inheritance rights in agricultural land equal to men's. Section 4(2) excludom the purview of the HSA significant interests in agricultural land, the inheritance of which was subject to thuccession rules specified in state-level tenurial laws. Especially in the north-western states, these laws were hiender unequal and gave primacy to male lineal descendants in the male line of descent. Women came very lohe succession order and got only a limited estate. The new legislation brings male and female rights in agricultnd on par for all states, overriding any inconsistent state laws. This can potentially benefit millions of womenependent on agriculture for survival. Second, the 2005 act makes all daughters, including married ones,oparceners in joint family property. The 1956 HSA distinguished between separate property and joint familyroperty.

he separate property of a (non-matrilineal) Hindu male dying intestate (without leaving a will) went equally to ass I heirs, viz, son, daughter, widow and mother (and specified heirs of predeceased children). On joint familroperty, those previously governed by `Mitakshara' (prevailing in most of India) differed from those governed Dayabhaga' (prevailing in Bengal and Assam). For the latter, joint family property devolved like separate propeut in Mitakshara joint family property, while the deceased man's "notional" share went intestate to all class I h



ncluding females) in equal parts; sons, as coparceners, additionally had a direct birthright to an independenthare. Sons could also demand partition of the joint family property; daughters could not. The 2005 act does noouch separate property. But it makes daughters coparceners in the Mitakshara joint family property, with theame birthrights as sons to shares and to seek partition. In addition, the act makes the heirs of predeceased sond daughters more equal. Third, the 2005 act by deleting Section 23 of the 1956 HSA gives all daughters

ncluding those married) the same rights as sons to reside in or seek partition of the parental dwelling house.ection 23 disallowed married daughters (unless separated, deserted or widowed) even residence rights in thearental home, and unmarried daughters had rights of residence but not partition. Fourth, the legislation removdiscriminatory section which barred certain widows from inheriting the deceased's property, if they had

emarried.

ccording to the amending Act of 2005, in a Joint Hindu Family governed by the mitakshara Law, the daughter oparcener shall, also by birth become a coparcener in her own right in the same manner as the son heir. She save the same rights in the coparcenary property as she would have had if she had been a son. She shall beubject to the same liabilities and disabilities in respect of the said coparcenary property as that of a son and aneference to a Hindu mitakshara coparencer shall be deemed to include a reference to a daughter. But thisrovision shall not apply to a daughter married before the commencement of the Hindu Succession (Amendmect of 2005.

his provision shall not affect or invalidate any disposition or alienation including partition or testamentaryisposition of property which had taken place before 20th December, 2004.Further any property to which femaindu becomes entitled by virtue of above provision shall be held by her with the incidents of coparcenarywnership and shall be regarded, as property capable of being disposed of by her by will and other testamentarsposition. The provision was also made that where a Hindu dies after the commencement of the Hinduuccession (Amendment) Act of 2005, his interest in the property of a Joint Hindu Family governed by theitakshara Law, shall devolve by testamentary or intestate succession under the Act and not by survivorship, a

he coparcenary property shall be deemed to have been divided as if a partition had taken place.

urther the daughter is allotted the same share as is allotted to a son. The provision was also made that the shf the predeceased son or a predeceased daughter as they would have got, had they been alive at the time of artition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter.

urther the share of the pre-deceased child of a predeceased son or of a pre deceased daughter as such childould have got, had he or she been alive at the time of the partition, shall be allotted to the child of such pre-eceased child of the pre-deceased son or a pre-deceased daughter. The most important fact is that the interesHindu mitakshara coparcener shall be deemed to be the share in the property that would have been allotted im if a partition of the property bad taken place immediately before his death, irrespective of whether he wasntitled to claim partition or not. This amending Act of 2005 has also clear provision that, after commencementhe Amending Act of 2005, no court shall recognise any right to proceed against a son, grandson or great grandor the recovery of any debt due from his father, grandfather or great grandfather (on the ground of the piousbligation under the Hindu Law), of such son, grandson or great grandson to discharge any such debt. But if anebt contracted before the commencement this Amending Act of 2005 the right of any creditor, to proceed agaon, grandson or great grandson, shall not affect or any alienation relating to any such debt or right shall benforceable under the rule of pious obligation in the same manner and to the same extent as it would have beenforceable as if Hindu Succession Amending Act of 2005 had not been enacted.

urther for the purpose of creditors right stated above the expression son, grandson or great grandson shall beeemed to refer to the son, grandson or great grandson who was born or adopted prior to the commencement eptember, 2005) of the Amending Act of 2005. Such provisions shall not apply to a partition which has been defore 20th December, 2004. Sections 23 and 24 omitted. Likewise special provisions relating to rights in respef dwelling house and the disentitlement rights of widow's remarrying, respectively omitted from the Act. Themending Act also in the Schedule of the Hindu Succession Act, 1956 added new heirs viz, son of a pre-deceasaughter of a pre-deceased daughter of a pre-deceased daughter daughter of a pre-deceased daughter, son of



re-deceased daughter, daughter of a pre-deceased son.

hus the amendment of Hindu Succession Act of 1956 in 2005 is a total commitment for the women empowermnd protection of women's right to property. This Amending Act in a partrilineal system, like mitakshara Schoolindu Law opened the door for the women, to have the birth right in the family property like the son. The wome

ere vested the right of control and ownership of property beyond their right to sustenance.

mendments To The Hindu Succession Act And Gender Equalityhe recent legislative proposals amending the Hindu Succession Act are important steps towards gender equalnd abolition of the patrilineal system of inheritance prevailing among Hindus. These proposals are based on th74th Report of the Law Commission published in 2000 and seek to give Hindu women equal rights in theitakshara Joint Family Property. The proposed Bill also seeks to do away with Section 23 of the Hindu Successict which denies a woman the right to seek partition of an inherited ?dwelling? unit / house if other male heirs aesiding in it and further restricts her right to reside in the inherited residence unless she is a widow or has beeeparated from or deserted by her husband.

owever, the proposed changes are not comprehensive enough and women will still be subjected to unequalroperty rights in agricultural land as Section 4(2) of the Hindu Succession Act allows for special State laws toddress the issue of fragmentation of agricultural holdings, fixation of ceiling and devolution of tenancy rights ihese holdings. Thus, State laws exist in Delhi, U.P, Madhya Pradesh, Punjab & Haryana, which deny women eqghts of succession in tenancy rights. Further, certain other Sections of the Hindu Succession Act discriminategainst women through the discriminatory order of succession for male & female heirs. The proposed Amendmo the Mitakshara Joint Family Property laws making women equal coparceners are sought to be made applicabnly to women who are not married at the time the law is passed and is thus patently unjust also.

When the Hindu Succession Act was passed in 1956, the Mitakshara coparcenery system was retained and thehen Government refused to abolish this system of Joint family in spite of contrary recommendations by the Seommittee and protest by AIWC. Under the Mitakshra System of Joint Family, which prevails in all parts of Indiapart from Bengal only males are members (coparceners) of the Joint Family and the right to inheritance was byay of survivorship and not by way of succession . The son acquired a right and interest in Joint Family Property

rth while a woman family member only had a right to maintenance.

owever the Hindu Succession Act gave a share to the first class female heirs (daughters and wives) in the shaf the father / husband in the joint family property who died intestate (without making a will). However this shaas not equal to the share, which a son inherited, since the son was deemed to be coparcener (member of theint family) by birth. For e.g. in a joint family consisting of a father, a son and a daughter, both the father and t

on, according to the Mitakshara coparcenary system , would be equal owners of the property. Thus when theather died, after the 1956 Act, his share would devolve equally on both the son and daughter. However theaughter in this particular case would only get 1/4th share of the property whereas the brother who was alreadyo owner would have his half share plus 1/4th share of the property. The Amendment cleared by the Union Cabroposes to make the daughter also a coparcener in the Joint Family Property. It is pertinent to point out that sotates like Karnataka, Andhra Pradesh, Maharashtra and Tamilnadu have already passed laws making the daugmember (coparcener) of the joint family while other states like Kerala have completely abolished the joint fam

ystem.

his could be done as laws of succession fall in Entry 5 of the concurrent list of the VIII th Schedule to theonstitution. It is relevant to note that the Hindu Code Bill, as originally framed by the B.N.Rao committee andloted by Dr B.R.Ambedkar, had recommended abolishing the Mitakshara coparcenery with its concept of

urvivorship and the son?s right by birth in a joint family system and substitute it with a principle of inheritanceuccession. In fact, AIDWA had also during the Dowry Prohibition Act amendments in early 1980s, asked forbolition of the Joint family System. In this sense the Amendment doesn't go far away. The other Amendment,hich was cleared by the Cabinet, was to abolish Section- 23 of the Hindu Succession Act 1956. This provision



enies a married daughter the right to residence in an inherited parental home unless she is widowed, desertedeparated from her husband. The section further denies the daughter, who has inherited a house along with a m

member of a family from asking for her share of the property if any member of the family resides in the inheriteouse, until the male heirs also agreed. However, no such restriction has been placed by the Section 23 on a meir.

part from this the proposed amendment seeks to make the new law applicable only to those women who are married at the date of the amendment. This provision is based on the Maharashtra Law and is said to be made he presumption that women, who are married have already received their share of property etc. as dowry / gifuring their marriage. This is patently unfair not only because many women may not have received dowry but aecause the amount of dowry received can hardly be equated to equal rights in property. In reality this is a devo restrict the number of women, who inherit and to maintain status quo as far as possible.

part from the obvious discrimination in Section 6 and Section 23 discussed above, certain other sections of Hiuccession Act also blatantly discriminate against women and require amendment. The most important sectionhich has been used to deny property rights to women in agricultural land, is Section 4 (2) of the Hindu Succesct, which allows for State legislation to prevail over the Hindu Succession Act. This Section states that the Acthall not apply to laws ?providing for the prevention of fragmentation of agricultural holdings or for fixation of

eilings or for the devolution of tenancy rights in respect of such holdings?. Judgments under this Section havepheld laws under Section 4 (2) of the Hindu Succession Act and have mostly denied women equal rights ingricultural land. While some courts have held that the Hindu Succession Act will apply to agricultural holding, tan only be in the absence of State laws for the purposes mentioned in Section 4 (2) or if the States laws underection 4(2) themselves apply the Hindu Succession Act or personal laws to ?devolution of tenancy rights?. Couave upheld the State Land Reform Acts, relating to devolution of tenancy rights even though these do not alloomen to inherit these tenancies. Some courts have further interpreted the term ?devolution? of tenancy rightroadly / comprehensively to include devolution of tenure holder's right and have thus also denied womenwnership rights over agricultural land.

hus even laws meant for land reform and to enforce ceiling have resulted in denying to women equal rights ovnd and a chance to improve her disempowered status. Section 30 of the Hindu Succession Act allows any Hind

o dispose off his property including his share in the Joint Family Property by will. As has been pointed by womerganizations/ groups and activists this Section can and has been used to disinherit women. It has beenecommended by many that a limitation should be placed on the right to will. Such a provision exists in Muslim here a Muslim can only Will away up to a maximum of -1/3rd of his property.

ection 15 of the Hindu Succession Act which specifies how the property of a female Hindu will devolve alsoontains certain discriminatory provisions. It states that in the absence of class I heirs( son, daughters & husbahe property of a female Hindu will go to her husband's heirs and only if these heirs are not then will the properevolve upon her mother and father. However, in the absence of the mother and father, the property will againevolve upon the heirs of the father and only if there are no heirs of father will the property devolve upon the hf the mother.

he proviso to Section-6 of Hindu Succession Act contains another instance of gender bias. The proviso states t

he property of the deceased in the Mitakshara Coparcenary shall devolve by intestate succession if the deceasad a female heir or a male heir who claims through such female relative. In order to appreciate the gender bianecessary to see the rules of devolution of interest under section 8 of the Hindu Succession Act. In this sectio

here are only four primary heirs in the Schedule to class I, namely, mother, widow, son and daughter. If, howevor example the son or daughter has already died, their children can inherit the property. The principle of epresentation goes up to two degree in the male line of descent; but in the female line of descent it goes onlypto one degree. Accordingly, the deceased son's son's son and son's son's daughter get a share but a deceaseaughter's daughter's son and daughter's daughter's daughter do not get anything. A further infirmity is that aidow of a pre-deceased son and grandson are class-I heirs, but the husbands of a deceased daughter or grandaughter are not heirs.



ritical Appraisal Of Amendments To The Hindu Succession Acthe recent amendment to the Hindu Succession Act has made the daughter a member of the coparcenary. It alives daughters an equal share in agricultural property. These are significant advancements towards genderquality. The Hindu Succession (Amendment) Bill 2004, passed unanimously by the Lok Sabha, comes after a loap: the Hindu Succession Act was passed in 1956. The present debate about removing discrimination against

omen to a large extent remains confined to the experts. The law, obtuse at the best of times, takes on an evemore tedious character when it comes to inheritance laws.

or almost half a century since the passing of the Hindu Succession Act, 1956, there has been the widespreadelief that under Hindu personal law daughters are equal to sons. This belief was based on Section 10 of the Acealing with the distribution of property of a Hindu who has died without making a will, referred to as ?intestatew. The provision unequivocally declares that property is to be distributed equally among Class I heirs, as

pecified in the schedule. The schedule clearly lays down daughters, mothers and widows as Class I heirs entitlo a share equal to that of sons. This, though seemingly a huge step in favour of gender justice, was in fact moreight of hand.

he mischief lay in customary Hindu law and the concept of mitakshara coparcenary property. A Hindu joint famonsists of a common ancestor and all his lineal male descendants, together with wives or widows and unmarrie

aughters. The existence of a common ancestor, necessary to bring a joint Hindu family into existence, continuven after the death of the ancestor. Upper links are removed and lower ones are added; the joint family canontinue indefinitely. Except in the case of adoption, no outsiders are permitted and membership to the joint faby birth or marriage to a male member. A Hindu joint family is a unit and is represented by the karta or head

he Hindu Succession Act retained the coparcenary. In fact, Section 6 specifically declares that, on death, thenterest of a male Hindu in mitakshara coparcenary property shall devolve by survivorship to other members ofoparcenary and not by succession under the Act. However, it laid down that the separate share of the deceaseomputed through the device of adeemed partition just before his death, would devolve according to theuccession Act.

he Act did not clearly spell out the implications of exclusion from membership to the coparcenary in respect of

nheritance of property. Thus, if a widowed Hindu male died leaving a son and a daughter, then, according to thxplanation in Section 6 of the Act, there will be deemed to be a partition just before the death of the person. Inhis deemed or ?notional? partition, the father and son share equally and each gets half the property. The fathealf will be shared equally by his son and daughter as Class I heirs. In effect, therefore, the daughter gets one-ourth of the property, while the son gets his own half from the deemed partition as a coparcener and an additioalf from the share of his father. Together that would be three-fourths of the property. It is this inequity betweeon and daughter that has now been removed by the amendment.

he preferential right by birth of sons in joint family property, with the offering of shradha for the spiritual benend solace of ancestors, have for centuries been considered sacred and inviolate. It has also played a major rolhe blatant preference for sons in Indian society. This amendment, in one fell swoop, has made the daughter a

member of the coparcenary and is a significant advancement towards gender equality.

fter the amendment, daughters will now get a share equal to that of sons at the time of the notional partition, efore the death of the father, and an equal share of the father's separate share. However, the position of themother vis-a-vis the coparcenary stays the same. She, not being a member of the coparcenary, will not get a sht the time of the notional partition. The mother will be entitled to an equal share with other Class I heirs only fhe separate share of the father computed at the time of the notional partition. In effect, the actual share of the

mother will go down, as the separate share of the father will be less as the property will now be equally dividedetween father, sons and daughters in the notional partition.

he original bill, introduced in 2004, exempted agricultural land from the purview of the amendment. A



onsiderable section of society is totally against equal shares to daughters with respect to agricultural land. Thenclusion of agricultural land in the amendment, giving equal shares to daughters and overriding state-levelscriminatory tenurial laws, is a great credit to parliament. Effective lobbying by women's groups must also beiven due credit.

he equal sharing of the father's property applies in cases where he dies intestate -- that is, without making a wiven the bias and preference for sons and notions of lineage, discrimination against daughters in inheritance

hrough wills is bound to remain. In most cases, the terms of the will would favour the son. Perhaps the share oroperty that can be willed by a person could be restricted, as a step towards greater gender equality. Forxample, Islamic jurisprudence lays down that a person can only will one-third of his property. Provisions to chehe prevalent practice of ?persuading? daughters to give up their share in joint family property is another area equires attention. This is an opportune time to keep up the momentum for further reforms to reduce gendernequities and move towards a more equal society.

he amendment will only benefit those women who are born into families that have ancestral property. There isrecise definition of ancestral property. Given the fact that families have long since been fragmented and the fhat the joint family system is on the decline, it is not at all clear whom this law will benefit. It cannot apply to scquired property. No person by birth will acquire any rights in self-acquired property. In today's context, most

roperty is self-acquired and that property must follow principles of succession under the different succession laoreover, its owner can dispose off such property during his lifetime by gift. It can be bequeath by will to anyof his choice. The proposed amendment notwithstanding, a Hindu father can disinherit his wife or daughter by

n his self-acquired property. The amendment therefore by itself cannot offer much to Hindu women. What is mnder the laws of certain states, it will actually disadvantage widows, as the share of the daughter will increaseomparison to the widow. The amendment is not at all well thought out and can play women against each othehere is no equity in that. Thus, though seemingly progressive, it does nothing more than make a political poinhat the state is committed to abolishing discrimination against women, but only Hindu women. The position ofomen married into the joint family will actually become worse.

he proposed amendment only makes the position of the female members of the joint family worse. With aaughter along with the sons acquiring a birthright, which she can presumably partition at any time, the rights ther members of the joint family get correspondingly diminished. While the reforms of the 1950s disadvantagevorced wife, the reforms of the present times will disadvantage married women as well. Until now, the onlyrotection 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. Thus married women whved in a joint Hindu family had the protection of the family home. This protection will now stand eroded, to thextent that the total divisible amount gets reduced. Something similar will happen to Hindu widows. Daughterscquire a birthright in Hindu joint family property, mothers stand to lose a portion of the cake, as an inheritanceince Hindu law does not grant any rights to wives in marital property, their only chance of getting anything wan an inheritance, as equal share with the sons and daughters, if the marriage was subsisting on the death of thusband. On divorce, of course, even that right to inheritance disappears. It is birthright in Hindu law that is theoot of the problem. Birthright by definition is a conservative institution, belonging to the era of feudalism, coups it was with the rule of primogeniture and the inalienability of land. When property becomes disposable and scquired, different rules of succession have to apply. It is in the making of those rules that gender justice has to

ocated. What the proposed amendment does is to reinforce the birthright without working out its consequence

l women.

ustice cannot be secured for one category of women at the expense of another. It is impossible to deal withuccession laws in isolation. One has to simultaneously look at laws of matrimonial property, divorce anduccession to ensure a gender just regime of laws. The present bill does nothing of the kind. The exercise shoue abandoned in toto.

onclusionmpowerment of women, leading to an equal social status in society hinges, among other things, on their right



old and inherit property. Several legal reforms have taken place since independence in India, including on equhare of daughters to property. Yet equal status remains illusive. Establishment of laws and bringing practices ionformity 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 concertedmanner for the process to be speedy and effective.

hese amendments can empower women both economically and socially. and have far-reaching benefits for thamily and society. Independent access to agricultural land can reduce a woman and her family's risk of povertmprove her livelihood options, and enhance prospects of child survival, education and health. Women owning r a house also face less risk of spousal violence. And land in women's names can increase productivity by

mproving credit and input access for numerous de facto female household heads.

aking all daughters coparceners like wise has far-reaching implications. It gives women birthrights in joint famroperty that cannot be willed away. Rights in coparcenary property and the dwelling house will also provide sorotection to women facing spousal violence or marital breakdown, by giving them a potential shelter. Millions omen - as widows and daughters - and their families thus stand to gain by these amendments.

nd Notes. 174th Report of Law Commission of India under the Chairmanship of Justice B.P. Jeevan Reddy, vide D.O. No.(3)(59)/99-LC(LS), dated 5th May, 2000.. Mulla, Principles of Hindu Law (1998 17th ed. by SA Desai), p. 168.. Ibid.. Mayne's, Treatise on Hindu Law & Usage, (1996 14th Edn., edt. by Alladi Kuppuswami p. 1065.. M. Indira Devi, "Woman's Assertion of Legal Rights to Ownership of property" in Women & Law Contemporarroblems, (1994 edt. by L. Sarkar & B. Sivaramayya) p. 174; also section 3(3) of Hindu Women's Right to Properct, 1937.. Murumakkattayam, Aliyasantans and Nambudri.. Gotraja, Sapindas, Samanodlakas and Bandhus. Sapindas, Sakulyas and Bandhus. 7th Report of Parliamentary Standing Committee dated 13th May, 2005.0. Notional partition.1. 7th Report of Parliamentary Standing Committee2. Before amendment of Hindu Succession Act, 1956 in 2005

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Changes Brought in the Position of Women