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The rights of women as coparcenars

The Rights Of Women As Coparcenars In A Hindu Joint Family

Introduction

The paper is an attempt t o showcase t he Hindu success ion laws as per the Hindu Succession Act 1956 and

Hindu succession (Amendment) Act 2005 as well the uncodif ied Hindu laws and apply it f or determining the

Rights Of Women As Coparcenars in a Hindu Joint Family.

The paper will address the issues related to (i) The Laws of inheritance and succession in the Medieval

Hindu Personal laws and their implication towards the Rights f or Women, (ii)The Laws of Coparcenary for

The Hindus in the present era and its implication to wards women who is a member of a joint Hindu family

and (iii) Also whether the Hindu Succession (Amendment) Act 2005 is an error f ree legislation or not?

One signif icant idea behind the evolution of f amily in human society is o f providing security to members.The Personal Laws In India work as a source of rules and regulations which act as guidelines f or people of

a particular sect or religion. The Indian Penal Code, 1860, def ines Personal laws as The law which governs

certain aspects of a person's relationships or rights or privileges in regard to certain matters such as

succession, marriages, etc, by virtue of his belonging to a particular community or group. Therefore

Personal Law presumes if a particular person f ollows it then he consents his membership to t hat

community. In the Indian context, Personal Law refers laws adopted by communities like Hindus, Muslim ,

Christ ian and Paarsi community. The Judicial system in India f rom the co lonial era has put its ef f ort on

codif ying these Perso nal Laws . The general principles of inheritance in Hindu Law are codif ied in the Hindu

Success ion Act o f 1956. The act came into existence into f orce on 17 June 1956, with t he basic objective

of providing a comprehensive and uniform scheme of intestate succession for Hindus. The enactment o fthe act had to pass through certain hurdles. There were certain provisions which were not accepted by the

leaders o f various branches of Hindu Law. The act abolished the distinct Laws o f Success ion under the

Dayabhaga and Mitakshara systems and provides a unif orm law, based on natural love and af f ection and

nearness in relationship. The mos t important f eature of codif ication of Hindu Law was identif ication of

Rights of women in the Hindu Joint Family. In the words of saxena, the concept of limited estate f or Hindu

women was abolished and was replaced by Abso lute ownership. Again the act provided for two dif f erent

schemes f or male and f emale intestates in which the f emale intestates had a f urther divergence linked with

the source of acquisition of the property that is a subject matter of succession. However, on the

recommendation of the 174th Law Report of the Law Commission on Property Rights o f Women-Proposed

Reforms Under Hindu Law' , The Hindu Success ion (Amendment) Act was established in the Rajya Sabha on

16th August 2007.The act primarily amended Sec 6 of the Hindu Success ion Act(1956) and pro vided equal

Copercenary Rights to the daughter of a Joint Hindu Family.

Women's Status During The Medieval Era In A Hindu Joint Family

Wealth provides security to individuals.According to Dharma Shast ra it is the duty o f the

householders(Grahasta) to provide safety and security to children, the old, and the inf irm and other such

members of the f amily who cannot be independent. The f ather in a patriarchial society is expected to take

care of his f amily. In a Joint Hindu Family where a number of individuals live together t he economic

resources owned by each one of them are transf erred to a common f und. This entire compound of f und is

contro lled by the senior mos t member of the f amily which is called the Karta'.

The Dharma Shastra t ries t o saf eguard the interests of the diversified sections o f the so ciety. With the

passage of time ef f ort s have also been made to recognise the rights o f women as mothers, daughters in

law, widows of deceased male members, daughters and even unwed and illegitimate keeps.
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In the medieval era the law of inheritance were basically governed by two schools of thought namely the

Mitakshara and The Dayabhaga system. Prior to the enactment o f the Hindu Succession Act 1956 the ruling

canon in determining the order of succession in Mitakshara system was propinquity and in the Dayabhaga

system it was religious ef f icacy.

The Dharma Shast ra conf ers right to wards married women. According to Mathur, Dharma Shastra presents

various s tages o f evolution of law on the wife's right to property, particularly her husbands property- bo th

self acquired and ancest ral. Again Apastamba said that t he husband and wif e had a joint interest (in the

acquisition and disposal of wealth). The importance of mother in deciding the matters related to Joint

Family Property can be gauged f rom the f ollowing remark of Manu Smriti , bro thers may take equally the

ancest ral wealth af ter the mother and the f ather alive. Again Yajnavalkya also means that t he sons shall

divide their ancest ral estate and the paternal debts equally upon the death o f both the parents.

The Dayabhaga system lays down that af ter the death of the f ather the sons do The Dayabhaga system

lays down that af ter the death of the f ather the sons do not possess any right to independently divide the

property throughout t he life of the mother. However the sons may divide with the consent of the mother.

Jimutavahana f urther lays down that , where a person leaves behind more than one widow, each having an

equal number of sons, the widow may partition the property among themselves not possess any right to

independently divide the property t hroughout the lif e of the mother. However, in the Mitakshara system the

son is recognised as a co-owner with the father of all the ancest ral property and has an interest in the

property s ince birth. Again. The consent o f mother for part ition is irrelevant in this system.

The Shastas, f or instance the Yajnavalkya have recognised the wif e's share in the property when the

husband is alive. In this context the concept o f Stridhana, is recognised by various schools of thought.

According to Mayne's Hindu Law and usage the pro perty held by a women is called Stridhana. Women are

awarded the right to hold separate property under Hindu Law. There are various f orms o f properties which

are received by women as Stridhana. They include:-

Bef ore the nuptial f ire

At the bridal po ssessio n which she is led f rom her f ather's house to her husband's dwelling

Bestowed in token of love

Gif ts f rom father, mother and brother

Gif ts f rom bandhus , and so on


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In the medieval times, even though the wives were allowed to hold the property but their demanding

partition was generally unaccepted. Apastamba , has stated that husbands and wives were joint owners of

the pro pertyand that no division was possible. According to an issue raised by Devana against Y.S. II 115 ,

the wife and husband cannot separate like sons and that the wife holding property separately f rom the

husband, only implies that when the husband divides the sons f rom herself he should take a share for his

wife as well and keep it under his contro l along with his own share.

The schoo ls o f Hindu Law in the medieval times recognised the Rights of Unmarried sister in a Hindu Joint

Family. According to The Dharma shastras, the unmarried sisters have the right to be mentained by herf ather and brothers, and also t he Right to be married of f f or which the f ather or the brother may draw from

the ancestral corpus. Again, the duty of Marrying of f the sister is also vested of f with the father and the

brother. It has been laid down by Manu that each brother must give one f ourth of the share to the

unmarried sister. Again the Yajnavalka prescribes that the married' brother must give one f ourth of their f or

the marriage of the unmarried sist ers' The term one f ourth' has been criticised fo r a lot o f time now.

According to Mitakshara o ne f orth did not mean one f ourth of the each brothers share but only one

f ourth of the share that the daughter would have received if she were a son' Candeswara echoes the

verdict of Mitaksara by saying that t hough several texts mention that one fourth' share is to given by the

brothers it need not be taken literally. Again Devana Bhata , has discussed this issue in detail. In his words,

if the ancestral home is small then each brother xhall give one f ourth share of his holding towards themarriage of the sister. Again, when the paternal wealth is large then the brothers can cont ribute as much as

they can. Similarly, if the number of sist ers is very large then the brothers have to f ollow Manu's rule, and

contribute one f ourth share f or t he wedding of all the sisters t ogether.

Recognit ion Of The Rights Of Women Post Colonialism And In The Present Era

The rights o f the women were f irst ly recognised by The Hindu Women's Right To Property Act 1937. The

act was one of the f irst legislation f or the welfare of Hindu women in general. The very intent ion of the act

was to conf er better rights upon Hindu women in respect of the propert ies. The act in invest ing the widow

of a member of the coparcenary with the interest which the member had at the t ime of his death has

intro duced changes which are alien to the t ime of his death. However in the Mitakshara coparcenary women

cannot be coparcenars. The act was later replaced by the Hindu Succession Act, 1956 . The act was

adopted o n 17th June 1956 . It amends and modif ies the aspects of class ical Hindu law and Mitakshara

Coparcenary, intestate succession and even testamentary succession. The act f urther abolished the

dif f erence between the Mitakshara and Dayabhaga System .

Mos t importantly the system abolished the concept of limited estate to women and replaced it with

absolute ownership. Again the act provided f or two dif f erent schemes of succession f or male and f emale

intestates. The act provides f or totality of testamentary dispos ition of the property.

However, the act could not depart f rom the concept o f st ridhana even though it made radical progress withthe conf erment o f absolute o wnership on the women. Again, according to saxena, on one hand the

determination of the heir was done on the basis of nearness or natural love with and af f ection, and not on

the basis of consanguinity and religious ef f icacy, the rule was limited to Class I and Class II of heirs, but on

the o ther hand in case o f remoter category the pref erence was given to male chain. Also with the retention

of the mitakshara system a lot o f its f undamental principles are st ill in operation. The Hindu Succession Act

1956 deleted the concept of saviour ship f rom the provisions o f coparcenaries' in Hindu Joint Family. The

concept of saviour ship means that the moment a so n is born in a Hindu Joint Family; he takes over

interest in the coparcenaries'. The other salient f eature of the act was introduction of the concept of will in

the testamentary succession laws. Even though intestate succession laws was the area where the act

concentrated but s till it stated the a male or a f emale Hindu can create a will of his property . This will takes

af f ect f rom the date of the death of the person creating the will.


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The Rights of the Women as Coparceners were f ormally recognised f airly recently with the Hindu

Success ion (Amendment) Act 2005. The act is considered as a landmark f orm of legislation as f ar as

women's rights are concerned. Sec. 6 of the Hindu Succession Amendment Act int roduces a daughter as a

coparcener in a Hindu Joint Family irrespective of her marital status. Bef ore t his Amendment act f our s tates

had brought about a similar change .Thus the discrimination between the daughter and the so n has come

to an end as her rights and liabilities are same as that o f the son. The Act has made a noteworthy ef f ort to

look that the marital status of the daughter on o r befo re the enactment of this Act does not af f ect her

coparcenary right and theref ore no discrimination prevails between the married and unmarried daughter.

There are again some issues o n which the Act o f 2005 can be contested. The issue of discrimination on

the grounds o f gender on the issue of saviour ship has been highly criticised. Sec.6(2) of the act says that,

the f emale will hold the property with incidents of coparcenary ownership. However, the legislation has not

explained what these incidents of coparcenary property are? Thus, in this condition while applying the

principles o f Medieval Hindu Law it can be explained the property will either be jointly held by the

coparceners o r it will be subject to saviour ship. However, the concept o f saviour ship has been abolished

f or t he male members of the coparcenary. Thus, this creates a discrimination on the grounds of gender on

the issue of coparcenary. The Act also recognises the right of the daughter with respect of not ional

partition.

The Act also abolishes the provision relating to the inapplicability o f including Agricultural property under

the purview of the act. However at the same time it does not clarify whether agricultural property would be

or would not be subject to the application of the act. The deletion of Sec.4(2) f rom the act has brought an

ambiguity over the issue of Agricultural Property. The provision meant t hat the act will not apply over

agricultural property a state statute is already present. But the state governments usually follow a policy

according to which it has a unif orm code for land related matt ers. Thus, diversity would exist state wise

with respect t o laws governing agricultural property.

Again the act also deletes Sec.24 of the act which doesn't provide the Right of Coparcenary to certain

remarried widows. The earlier law only included three widows i.e, widow of a predeceased son, widow of a

predeceased son of a predeceased son and brother's widow. The act includes all the widows irrespectiveof their status. The act provides the female coparceners to make their testamentary dispos ition of heir

property. A f emale coparcener is empowered to dispose o f her wealth by writing a will. In this regard the

amended Sec. 30 of he act specif ically includes t he words disposed of by him or her instead of

disposed of by him.

The Act also abolishes special rules relating to dwelling house. According to Saxena, one of the major

discriminato ry provisions under Hindu Success ion Act 1956 was Sec.23, which specif ied special rules

relating to the devolution of a dwelling house. The clauses o f Sec.23 of the Act before its abrogation

provided that where a Hindu intestate has lef t surviving both male and f emale heirs and that his property

includes a dwelling house which is occupied by the members o f his f amily then any f emale heir of the Hinduintestate cannot claim partition o f the dwelling house until and unless the male heirs also consent f or its

part ition.. Moreover, if t he female heir is an unmarried daughter or is separated by her husband or is a

widow then she can claim f or Right of Residence. The Hindu Succession (Amendment) Act 2005 amends

this provision and promotes gender equality.

Conclusion


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Hindu Succession Laws have certainly become dynamic with the passage of time. Women's Right to

Property have gradually been recognised by the Codif ied Hindu Personal laws. With The Hindu

Success ion(Amendment) Act 2005, Hindu women are been empowered equal Rights when compared to male

in the matter o f Coparcenary by birth.. However, there s till exists some grey areas on which the provision o f

the act are not clear. One such area is when a Hindu male marries a Non -Hindu f emale then an of f spring of

theirs will not be regarded as a Hindu Joint Family Coparcenar. Again, the matter of abolishing Saviour ship

by birth f or male child and the lack of clarity on this matter f or a f emale child is also a cause of concern.

Similarly, there is confusion in on the matters of Agricultural Property. The Amending Act also does not

provide any clear ruling on the matter of devolution of Property of a f emale. If a Hindu Female gets a share

of her coparcenary property, marries and dies, then who would succeed to her interest - her husband or her

natal f amily members? The interest of the f emale coparcener should ideally be given to her husband and

her children.

The issue concerning the Women's Rights in a patriarchial Hindu society is really concerning. Formulation of

legislations like Hindu Succession Act 1956 and The Hindu succession(Amendment) Act 2005 largely helps

in the establishment of the basic const itutional too l of Right to Equality. However, as mentioned above the

statute must avoid confusion o n certain matters. Again on the o ther hand the women community must be

made aware of their rights so that they can utilise it f or their benefit .

Bibliography

Statute

a. Hindu Succession Act(1956)

b. Hindu Succession (Amendment) Act (2005)

c. Hindu Women's Right To Property Act 1937

Art icles, Notes And Comments In Journals, Books And Colloquia

a.8 Halsbury's laws of India, 274-331(2007)

b. Dayabhaga D.B III 1.1, 1.9

C. Manusmriti M.S IX 104, 118

d. SC II PP: 625-627

e. Yajnavalkya Y.S II 117, 124

Books

a. Ashutosh Mathur, Medieval Hindu Law, 62- 112, Cambridge University Press,

b. G.C.V. Subba Rao, Family Law, Gogia Law Publishers

c. Mayne's Hindu Law and Usage, 840, (12th ed.1986)

d. Mulla on Hindu Law, 201(17th ed. 1999)

e. Poonam Pradhan Saxena, Family Law Lectures Family Law II, Lexis Nexis Butterworths

Statutes

a. Commissioner Income Tax v Govind Ram Sugar Mills, AIR 1966 SC 240


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b. Anar devi and ors v Parmeshwari Devi and ors SC 4171 (2006)

c. Sheela Devi and ors v Lal Chand and ors SC 4326 (2006)

Miscellaneous

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

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