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Hindu Jurisprudence on Succession and Gender Equality: The Indian Scenario

Hindu Jurisprudence on Succession and Gender Equality: The Indian Scenario

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Hindu Jurisprudence on Succession and Gender Equality: The IndianScenario
Ravi Kant Mishra*
“Empowering women is a prerequisite for creating a good nation, when women areempowered, society with stability is assured. Empowerment of women is essential astheir thoughts and their value systems lead to the development of a good family, goodsociety and ultimately a good nation.”
-
A PJ Abdul Kalam
**
Equality before law, equal protection of law, equality of opportunity in social, economicand political spheres are the bedrock of justice and discrimination of any kind on any basis isantithesis to the concept of equality and justice. Women, constituting half of the Indian population,self sacrifice and self denial are whose nobility and fortitude have been subjected to all inequities,indignities, inequality and discrimination.
1
 They always remained bereft of the advances in socialdevelopment, education, health, employment, economic participation, science and technology etc. because of the traditional and stereotype roles of nursing children, caring husband and in- laws,and carrying out domestic chores such as cooking and cleaning etc. accorded to them. The rootcause of women’s subjection is their economic dependence on men and as long as women will bedenied for or deprived of economic independence, there cannot be equality between sexes.
2
Proprietary rights are of special importance and significance because economicindependence has usually an important bearing on the well being of a class. In the realm of  property, the old Hindu law granted to women limited proprietary rights and discriminated womenon the ground of sex in the matter of intestate succession to the estate of the parents or husband.Thus, the position of women in India under the traditional Hindu law was much worse because of the restrictions on the rights of inheritance of women and the limited estates of Hinduwomen.
3
Being cognizant to the unequal position of women in intestate succession, afteindependence when old human values assumed new meaning and also due to the growingworldwide impact of human rights and fundamental freedoms
4
the need for emancipation of 
1
*
Assistant Professor, Department of Law, North Eastern Hill University (NEHU), Shillong, Meghalaya(India)- 793022.
**Former President, Republic of India.
See Madhu Kishwar Vs State of Bihar, AIR 1996 SC 1864 at 1871
2
See generally B.C. Nirmal, ‘Taking Violence Against Women Seriously:International and Domestic Human RightsJurisprudence’, in Bimal N. Patel (ed)
 India and International Law-II 
, Koninklijke Brill NV, The Netherlands,2008,p 413-452; Monica Chawla,
Gender Justice: Women and Law In India
, Deep and Deep Publications, NewDelhi, 2006; C.L. Anand
 , Equality, Justice and Reverse Discrimination
, Mittal Publication, Delhi, 1987; Sachs andWilson, Sexism and the Law, in Cam’bell and Wiles (ed)
 Law in Society
, Martin Robertson and Co. Ltd, 1978; W.H.Chafe,
Women and Equality
, Oxford University Press, New York, 1977
3
A.S. Altekar,
The Position of Women in Hindu Civilization
, Motilal Banarsidas, Delhi, 1978;Priya Nath Sen,
General  Principle of Hindu Jurisprudence
, Tagore Law Lectures, Allahabad Law Agency, 1984,P 125-175;Justice R.N.Mishra,
Mayne’s Hindu Law and Usage
, Bharat Law House, New Delhi, 15
th
edition.
4
For efforts at international and regional levels to empower women see generally B.C. Nirmal, ‘Taking ViolenceAgainst Women Seriously:International and Domestic Human Rights Jurisprudence’, in Bimal N. Patel (ed)
 Indiaand International Law-II 
, Koninklijke Brill NV, The Netherlands, 2008,p 414-421; Justice R.C.Lahoti,’Women’sEmpowerment – Role of Judiciary And Legislature’,(2005) 2SCC (J) p49-50;K Tomasevski,
Women and Human Rights
, Women and World Development Series, London, Zed Books,1993;J. Kerr,
Ours by Right:Women’s as Human Right 
s, London, Zed Books,1993;R.Cook,
 Human Rights of Women:National and International Perspective
s,Philadelphia, University of Pennsylvania Press,1994;Amnesty International,
 Human Rights are Women’s Rights
,London, Amnesty International, 1995;Katarina Tomasevski, Women’s Rights, in Janusz Symonides (ed)
 Human Rights Concept and Standards
, Rawat Publications, New Delhi,2002,p231-254.
 
8women was realized and to set up a new social order to give women equal status and place of honor and to abolish discrimination in succession based on gender became the demand of the time.In the year 1956, the Hindu Succession Act, came into existence which improved the pre-existing rights of Hindu women but it had some gross features of discrimination such as retentionof 
Mitakshara Coparacenary
5
, discriminatory provisions relating to devolution of tenures, right to partition, dwelling rights etc.In the year 2005, a major Amendment
6
 has taken place with an aim to eliminate gender discrimination in the arena of succession or inheritance laws.This article aims to discuss the efficacy and importance of the Hindu SuccessionAmendment Act, 2005 in removing or eliminating gender inequities and in acceleratingempowerment of women in lieu of Hindu jurisprudence and the demand of time. This article alsointends to examine the impact and repercussions of amendment provisions on family, society andother social organizations.
Hindu Jurisprudence on Women’s Property Rights: Background in brief:-
Indian Jurists feel proud that at least in theory their indigenous jurisprudence
7
allowed women,
 stridhanam
8
,an asset available at their disposal or at least for their enjoyment and security at a
5
Under the
Mitakshra System of Joint Family
, which prevails in all parts of India apart from Bengal only males aremembers (coparceners) of the Joint Family and the right to inheritance was by way of survivorship and not by wayof succession. The son acquired a right and interest in Joint Family Property on birth while a woman family member only had a right to maintenance. However the Hindu Succession Act gave a share to the first class female heirs(daughters and wives) in the share of the father / husband in the joint family property who died intestate (withoutmaking a will). However this share was not equal to the share, which a son inherited, since the son was deemed to be coparcener (member of the joint family) by birth. For e.g. in a joint family consisting of a father, a son and adaughter, both the father and the son, according to the Mitakshara coparcenary system , would be equal owners of the property. Thus when the father died, after the 1956 Act, his share would devolve equally on both the son anddaughter. However the daughter in this particular case would only get 1/4th share of the property whereas the brother who was already a co owner would have his half share plus 1/4th share of the property.
6
W.e.f.9
th
September, 2005
7
On Changing Concept of Hindu Jurisprudence, see Werner F. Menski,
 Hindu Law Beyond Tradition and Modernity
,Oxford University Press, New Delhi, 2003
8
 
 Stridhan/am
means woman’s property. In the entire history of Hindu Law, woman’s rights to hold and dispose of  property have been recognized.
Kinds of Woman’s Property-
What is the character of property that is whether it is stridhan or woman’s estate depends on the source from which ithas been obtained. They are:
Gifts and bequests from relations
- Such gifts may be made to woman during maidenhood, coverture or widowhood by her parents and their relations or by the husband and his relation. Such gifts may be inter vivos or by will. The Dayabhaga School doesn’t recognize gifts of immovable property by husband asstridhan.
Gifts and bequests from non-relations
- Property received by way of gift inter vivos or under a will of strangers that is, other than relations, to a woman, during maidenhood or widowhood constitutes her stridhan. The same is the position of gifts given to a woman by strangers before the nuptial fire or at the bridal procession. Property given to a woman by a gift
inter vivos
or bequeathed to her by her strangersduring coverture is stridhan according to Bombay, Benaras and Madras schools.
Property acquired by self exertion, science and arts
-A woman may acquire property at any stage of her life by her own self exertion such as by manual labour, by employment, by singing, dancing etc., or by anymechanical art. According to all schools of Hindu Law, the property thus acquired during widowhood or maidenhood is her stridhan. But, the property thus acquired during coverture does not constitute her stridhan according to Mithila and Bengal Schools, but according to the rest of the schools it is stridhan.During husband’s lifetime it is subject to his control.
Property purchased with the income of stridhan
- In all schools of Hindu Law it is a well settled law thatthe properties purchased with stridhan or with the savings of stridhan as well as all accumulations andsavings of the income of stridhan, constitute stridhan.
 
8time, when in the west, wives were unable to own property separately from their husbands exceptas beneficiaries under some trust or settlement
9
. But, in fact, it was not more than a security againstill behavior of her in laws. The Hindu Succession Act, 1956
 checked this discrepancy up to someextent
(In the case of C. Masilamani Mudaliar vs. Idol of Shri Swaminathathaswam! the SupremeCourt was required to determine the scope of right of Hindu Female to dispose of propertyacquired or possessed under a will executed prior to the commencement of the Hindu Succession Act. 1956. The Court said that Section 14 of The Hindu Succession Act should be construed harmoniously consistent with the Constitutional goal of removing gender-based discriminationand effectuating economic empowerment of Hindu Females),
 
rather it may be argued that this Acthas not only improved the status of women but has made protective discrimination in favour of 
Property purchased under a compromise
- When a person acquires property under a compromise; whatestate he will take in it, depends upon the compromise deed. In Hindu Law there is no presumption that awoman who obtains property under a compromise takes it as a limited estate. Property obtained by awoman under a compromise where under she gives up her rights, will be her stridhan. When she obtainssome property under a family arrangement, whether she gets a stridhan or woman’s estate will depend uponthe terms of the family arrangement.
Property obtained by adverse possession-
Any property acquired by a woman at any stage of her life byadverse possession is her stridhan.
Property obtained in lieu of maintenance-
Under all the schools of Hindu Law payments made to a Hindufemale in lump sum or periodically for her maintenance and all the arrears of such maintenance constitutestridhan. Similarly, all movable or immovable properties transferred to her by way of an absolute gift inlieu of maintenance constitute her stridhan.
Property received in inheritance-
A Hindu female may inherit property from a male or a female; from her  parent’s side or from husband’s side. The Mitakshara constituted all inherited property a stidhan, while thePrivy Council held such property as woman’s estate.
Property obtained on partition-
When a partition takes place except in Madras, father’s wife mother andgrandmother take a share in the joint family property. In the Mitakshara jurisdiction, including Bombay andthe Dayabhaga School it is an established view that the share obtained on partition is not stridhan butwoman’s estate.Stridhan has all the characteristics of absolute ownership of property. The stridhan being her absolute property, thefemale has full rights of its alienation. This means that she can sell, gift, mortgage, lease, and exchange her property.This is entirely true when she is a maiden or a widow. Some restrictions were recognised on her power of alienation,if she were a married woman. For a married woman stridhan falls under two heads:
The
 sauadayika
(gifts of love and affection)- gifts received by a woman from relations on both sides (parents andhusband).
The
non-saudayika
- all other types of stridhan such as gifts from stranger, peoperty acquired by self-exertion or mechanical art.Over the former she has full rights of disposal but over the latter she has no right of alienation without the consent of her husband. The husband also had the power to use it. On her death all types of stridhan passed to her own heirs. Inother words, she constituted an independent stock of descent. In
 Janki 
v.
 Narayansami 
(
1906)43 IA 87, the
PrivyCouncil
aptly observed, “her right is of the nature of right of property, her position is that of the owner, her powersin that character are, however limited… So long as she is alive, no one has vested interest in the succession.
For comprehensive note on stridhan etc. see Justice R.N.Mishra,
Mayne’s Hindu Law and Usage
, Bharat Law House, New Delhi, 15
th
edition, p1054-1101
9
J.D.M.Derrett,
 A Critique of Modern Hindu Law
, M.N.P. Pvt Ltd, Bombay,1970,p195
10
For detailed study of the Hindu Succession Act, 1956 and position of women under old law of inheritance in Indiasee generally, S.A.Kader,
The Hindu Succession Act,1956 
, Eastern Law House, New Delhi, 2004;Sir G.Banerji,
 Hindu Law of Marriage and Stridhana,
Mittal Publications, Delhi,1977. For comprehensive study of the position of women under the Hindu Succession Act, 1956 see B.Sivaramayya, ‘Coparcenary Rights to Daughters:Constitutionaland Interpretational Issues’,(1997) 3SCC (J) p 25-38;B.Sivaramayya, Gender Justice, in S.K.Verma and Kusum (ed)
 Fifty Years of the Supreme Court: It’s Grasp and Reach
, Indian Law Institute, New Delhi, 2001,p301-306.
11
 
Sec. 14
of Hindu Succession Act, 1956, provides that
“Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner 
”.
Section 14 removes pre-existing disabilities fastened on the Hindu female limiting her right to propertywithout full ownership thereof. It also removes gender based discrimination and effectuates economic empowerment

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