Right to Property

Daughters

right

to

(amendmen (amendment) t) Act2005: Act2005:

property rty

and

Hindu

Succession

another another blow in harmoniou harmoniouss family family

relations?

Is our society moving away from family bonds and attachment with the shift from joint families to nuclear families? Is the concept of ‘family security’   becoming becoming irrelevant irrelevant with the society society becoming becoming more individu individualist alistic ic and independent? Have our law makers used their authority to create one more dent in time tested harmonious relations woven into the fabric of Hindu families? The first dig at the relations began when daughters were made coparceners in the family of their birth and the process of digging was completed completed by the 2005 amendmen amendmentt to the Hindu Successio Succession n Act. Act. It is an attempt to bring about mathematical equality between brothers and sisters as thou though gh equa equali lity ty in prop proper erty ty is the the only only crit criter eria ia by whic which h to judg judgee an egalitarian society. society. Our lawmakers have conveniently forgotten to appreciate the daughter’s role and status as a ‘wife vis a vis her husband’

I hope to make this point by perusing a comparison of property rights of a woman under the Hindu Succession Act 1956(Principal Act) and the 2005 amendment; pros and cons cons of the 2005 amendment; why not place the wife on an equal footing footing with her husband; husband; and ponder ponder over some suggestions suggestions for the lawmakers to consider.

B. Property Property rights to women under Hindu Hindu Succession Succession Act 1956(HSA) 1956(HSA) Vis-a vis Hindu Succession (Amendment) Act 2005- a comparison

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Hindu Succession Act enacted in 1956 (which incorporates the Mitakshara  principle of propinquity i.e. preference of heirs according to the proximity of  relationship.) was commended by J.Duncan M.Derrett 1 with his observation that the law of Succession Succession has been so comprehensiv comprehensively ely reformed reformed that one need not fear of dying intestate. In a sense, Parliament has made a WILL for  everyone in HSA. A person can die intestate with confidence that no close relation will be left unprovided for, let alone destitute. The Parliament has considered and set out in an order of priority, the relations that in most cases are close to the deceased and whose claims have through the centuries been recognized by law or in the wills of those classes which normally leave wills. wills. The predom predomina inantl ntly y patril patriline ineal al struct structure ure has been been recogn recognize ized d but considerably modified by the undeniable claims of close cognate relations. This is not to say that law must remain static because it was praised at one  point of time. But laws have to be realistic. Life of law is not logic but experience. In this case the logic of equality has been stretched to a breaking  point. Does the Act serve to promote the harmonious family relations or  does it ill-serve healthy family relations ?

Succession under 1956 Act Vs 2005 Act.

The chart will show that Derret was right. Women folk were given a fair  share in their paternal property. In addition their limited estate was converted into an absolute estate(section 14)

Principal Act I. separate property

Under 2005 amendment: separate property

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

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

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are preferentia preferential/simu l/simultan ltaneous eous heirs. heirs.

•

They are:

daughter

•

mother, widow, son, daughter,

•

daughter of the predeceased daughter;

son

of

the

predeceased daughter, •

son

son son of the pred predec eceeased ased

of

predeceased

of

the

 predeceased daughter; •

daughter

of

the

  pre prede dece ceas ased ed daug daught hter er of   predeceased daughter 

son,

daughter daughter of predecease predeceased d son (ie. Upto great-grand children -of the aughtter and and the the son son alik alikee- are ,daugh ,daughter ter of the predec predeceas eased ed daugh son of predeceased son, son of   preferential heirs) the the prede redece ceas ased ed son son of the the  predeceased son, •

wido widow w of the the

pred predec ecea ease sed d

son, widow of the predeceased son of the predeceased son.

Exce Except pt the the firs firstt 4 othe others rs take take the the representative

shares

of

their 

deceased ancestor  •

note: 8 out of 12 are

female heirs and one is a male heir claiming through the daughter. •

Upto grand-children of the daughter; daughter; and great-gran great-grand d chil child dren ren of the the son son are are

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 preferential heirs)

II. Mitakshara

coparcenory

interest •

Mitakshara coparcenory interest

Sons Sons alone alone were were coparc coparcene eners rs  by birth

•

daughters

are

also

made

coparceners by birth. •

If the the dece deceas ased ed left left behi behind nd female heirs specified in Class I

or

male

heirs

•

Same as before but with the

claiming

addi additi tion on of 2 more more heir heirss in

through female heirs- property

Clas Classs I(vi I(vizz the the grea greatt-gr gran and d

devolv devolves es by testame testamenta ntary ry or 

children of the daughter)

inte intest stat atee succe success ssio ion n and and not not   by by surv surviv ivor orsh ship ip (pro (provi viso so to secion6 of the HSA)

  NOT NOTE: E: fact factss show show that that in a larg largee majo majori rity ty of the the case cases, s, one one or the the other female heir in Class I or male claiming through female heir would invariably be alive at the death of the intest intestate ate.. Therefo Therefore, re, the provi proviso so is larger than the rule which says that Mita Mitaks ksha hara ra

inte intere rest st

devo devolv lves es

by

survivorship. Hence, in most of the cases cases Coparc Coparceno enory ry proper property ty also also is availa available ble to class class I heirs heirs includ including ing 4

the daughters. •

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

•

Same as before

•

Daug Daught hter er also also take takess a shar sharee

share of undivided interest in Coparcenory property. •

In addition, son takes the share indepe independe ndentl ntly y as coparc coparcene ener  r   by birth.

inde indepe pend nden entl tly y by birt birth. h. She She takes the liabilities also on par  with the son. By implication, she takes the rights and duties of a karta also.

Eg

Father

dies-

leaves

son

+

daughter daughter.. Father’s Father’s notional notional share is

In the Same Eg daughter also has

½; and and son son has has ½ shar sharee by birth irth..

1/3 share by birth. After father’s

After father’ father’ss deathdeath- his ½ share to

death- his 1/3 rd share share is divide divided d

  be be divi ivided ded betw betwee een n the the son son and and

 between the son and the daughter.

daughter 

 Now son and daughter take- 1/3

son takes= ½ + ¼

(own share) + 1/6

daughter = ¼

( from father’s share)

III. III. Agri Agricu cult ltur ural al lan landd-

It was governed by the State tenurial

Agricultural land-

laws and only where the State laws It is now subject to the succession were silent, HSA applied.

under under the the

amend amendmen mentt and femal females es

have a share in it.. I. Dwel Dwelli ling ng hou house se (se (secc 23) 23) 5

•

cannot claim A female heir  cannot partition

of

the

dwelling

hous housee whol wholly ly occu occupi pied ed by

•

Dwelling house •

Section 23 deleted. Daughters-

members of the family of the

 both married and unmarried

deceased until the male heirs

have the same right to reside in

choose to divide their shares

and claim partition of the

Unma Unmarr rrie ied d daug daught hter er has has a

 parental dwelling house. The

right

right is not circumscribed by

of

residence.

But

married daughter has a right

any conditions or 

of residence only if widowed,

contingencies as before.

separated or deserted.   NOTE: it was a fair provision and alive to real life contingencies V. Widow Widowss rema remarry rrying ing

Widow idow of the the pred predec ecea ease sed d son, son, widow of the predeceased son of 

Widows remarrying

the predeceased son and the widow

They can inherit even if they have

of the brother are not entitled to

remarried.

inherit if she has remarried on the

establ establish ishing ing a new matrimo matrimonia niall

date the succession opens.

union in a another family- may be

NOTE:

the

property

already

(i.e.

even

after 

a total stranger family- she has a

inhe inheri rite ted d is not not dive ivested sted if she she

share in her former father in law

marries afte fter the death of the

/grand father in law’s property .!!!

dece deceas ased ed beca becaus usee law law does does not not favo favour ur dive divest stin ing g of the the prop proper erty ty once vested.

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

the liability of the parents towards daughter extends well beyond her  marriage. The daughter and in her absence- her children, her grandchil childr dren en and and grea greatt gran grand d chil childr dren en-- are are enti entitl tled ed to a shar sharee in the the separate and Coparcenory property of her father f ather.. They are entitled to a share share in the the agri agricu cult ltur ural al land lands; s; the the daug daught hter erss- both both marri married ed and and unmarried are entitled to ask for a partition, right of residence in the dwelling house occupied by her brothers even when the brothers are living jointly and without any contingencies like widowhood,divorce etc.

•

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

•

In addition, under circumstances specified under the Hindu Adoption and Maintenance Act 2- if she becomes a widow, she is a ‘dependant’ and her maintenance amount forms a charge on the assets inherited by the heirs of her father or mother.

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

section 21

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I submit- the liability of the parents under the present system has been extended much beyond reasonable and natural limits, having regard to the actual facts including the fact that after marriage the daughter passes over to the husband’s husband’s family and the husband is under a legal and a moral obligation to maintain her.

C. Pros Pros and Cons Cons of the 2005 2005 amendment amendment3

The question is : how far are the laws conducive to the healthy survival of  the families as an institution? My submission on the matter is as under: The Act disturbs the finely integrated emotional and sentimental threads woven into Hindu families. Existing family realities and the existing healthy healthy attitude of the Hindu families towards the daughters are not appreciated. The  parents take up full responsibility of their daughters until they are settled in life, not only as a duty but also out of love and affection. Given the means at their disposal, by and large, sons and daughters are treated equally given the growing egalitarian concept that has developed in the country. If the parents are are dead ead, in the larg arge majo majori ritty of the the case casess the brot rothers hers take ake full full respo respons nsib ibil ilit ity y of thei theirr sist sister ers, s,-- at time timess even even by incu incurri rring ng loan loanss and and  postponing their own marriages. This has been the culture of the Hindu soci societ etyy- give given n the the sacr sacred ed teac teachi hing ngss hand handed ed over over to us down down seve severa rall centuries. The fabric ought not to be disturbed. Even after marriage, during moments of crisis she turns to her parents and brothers for aid and advice. It is in the face of these these facts that that the law concern concerning ing proper property ty rights rights to femal females es has has been been amend amended ed in an atte attemp mptt to brin bring g abou aboutt equa equali lity ty with with 3

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

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math mathem emat atic ical al accu accura racy cy with withou outt taki taking ng into into cons consid ider erat atio ion n the the exis existi ting ng realities. There are some equations which may not fit into the mathematical formula of equality but have stood the test of time, as being based on the solid foundation of love/affection, love/affection, care and concern.

One argument in support of the amendments may be- that she too is required to take liabilities on par with the son. But then, let us be true to the issue-- Is she practically in a position to discharge and share all the responsibilities that her brother may take up? Or will she end up taking the benefit and una unable ble to disc ischar harge the the burd burdeen? The The ques questi tion on must ust be answ answeered red dispassionately and objectively and not just with a feministic bent of mind.

Real life situations show that after her marriage –she moves out to the place of her husband and her matrimonial home becomes the center of all her  attention/ affection, affection, care and concern. This is is not because she does not have any feelings for her maiden home but because circumstances are such that she has to put the convenience etc of her matrimonial family on the top of  the priority list. She gets so engrossed with her own family and children that - she starts identifying herself more with the matrimonial family than with the family of her birth as a matter of course. She even compromises her  career ambitions to make the matrimonial home a comfortable place for her  husband and children. No one need be blamed for it. Home management is a laudable job in deed,- in a nut shell- it means shaping and tuning the future gene genera rati tion on who who are are the the cust custod odia ians ns of the the futu future re gene genera rati tion on-- thou though gh unfortunately it is yet to get its rightful place. It is a system that has stood the test of time. But under these circumstances – is she in a position to take up the liabilities towards her parents also? The term ‘Liability’ must be given 9

a broader meaning to include not only the monetary liabilities but also the responsibility of looking to the physical needs of the parents etc in the maiden home. It is not just sending a monthly cheque to her parents. A stage is reached where the parents need physical caring and physical nearness more than just money. Howsoever much she may desire, and even with the most broad-minded broad-minded and understand understanding ing husband and in-laws, in-laws, she would would not  be in a position to discharge this liability. It is ultimately the sons and the daughter-in-laws who are to take care of her parents. The parents also would like like to be take taken n care care of by the the son son rath rather er than than the the marr marrie ied d daug daught hter er.. Somewhere deep inside, they would feel embarrassed if circumstances arise where they have to rely on the married daughter during their old age days. This is the psyche deeply ingrained due to what ever reasons.

Speaking of monetary liability, it would be unfair to burden her with the liabilities in her maiden family that have been incurred after her marriage, without her knowledge. At the same time it would be impracticable and unfair to expect the father and the brothers to consult her and get her consent for every transaction involving family liability – which are matters which any family would like to hold close to its chest.

Suppose the father dies leaving only liabilities and debts of the nature of   pious obligations but no assets- is she still to share the liabilities along with her brother? Can the creditors proceed against her also for recovery?

Allott Allotting ing an equal equal share share in immova immovable ble proper property– ty– has its own problems problems specially specially in an average family family with moderate moderate means. When she moves moves out to live with her husband- she becomes an absentee landlord; or she may be 10

indu induce ced d or forc forced ed to dema demand nd a part partit itio ion n and and sell sell her her shar share. e. Gene General rally ly   par parti titi tion on take takess plac placee afte afterr the the deat death h of the the fath father er;; she she may may beco become me instrumental – willing or unwilling- in splitting the family bonds- for which somewhere deep in her mind she would be repenting for her helplessness;   possibilities of she being caught up in tormenting moral and emotional dilemmas cannot be ruled out. Given the social set up in the Hindu families  –she would be hesitant to go against the wishes of her husband. On one hand- there may be a husband -coaxing /forcing or prevailing on her to demand her share in her parents’ property – and on the other hand- her own realizatio realization n about about the love and concern concern with which which she has been brought brought up  by them; the sleepless nights that may have been spent by them during her  moments of discomfort- may tear her apart. Possibilities of more female infanticide/ or suicides/ and more litigations cannot be ruled out.

Equal Equal rights rights in agricultu agricultural ral lands lands given given to daught daughters ers under under the 2005 amendment will lead to fragmentation of the lands which will reduce the

optimum utility of the land and also make life tough for the families with small holdings. The family of her birth could fall in disarray by such an action. By and large, agricultural holdings in India are not as huge as to accommodate a share in it for every heir. Mainly they are a modest means of  livelihood.

The rights pertaining to dwelling houses cannot simply be comprehended. Rights Rights in the dwelli dwelling ng houses houses along with with the the right in in agricultur agricultural al lands lands is the height of injustice to the family of her birth. No wonder if this right is traded for monetary gain.

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This kind of amendment would probably fit in a matriarchal family where sons-in-law moves into his wife’s family and the daughter continues to stay with her parents – in which case her brother would move on to the family of  his wife and together they would look after the needs etc of her family and also inherit their estate. India, primarily has a patriarchal set-up where law under consideration would do more injustice than justice.

D. Place wife on an equal equal footing as the husband husband

The extent of the wife’s identification with her husband’s family would  justify placing the wife on an equal footing as that of her husband. Let us try to weigh her property rights as a wife versus her contributions towards ‘making that home a worthy place to live.’ The non-monetary contribution of  the wife wife like like the home-mak home-making ing effor efforts, ts, the sacrifi sacrifices ces made made by her like like foregoing career opportunities or carrying on the career in a low profile, her  opportuni opportunity ty cost of time etc must be recognized recognized and protecte protected. d. Under Under the   prese present nt legal legal system system,, during during the lifetime lifetime of her husban husband, d, her moneta monetary ry security lies in the maintenance provisions under the Hindu Adoption and Maintenance Act; Act; the Criminal Procedure Code and the Hindu Marriage Act. In addition we have our testamentary laws under which an unscrupulous husband can drive his illiterate wife and the minor children penniless by making a will of his self-acquired property and his share in the Mitakshara Property (sec 30 of the HSA ) in favour of a total stranger. {Here again her  father is one of the persons who comes to her rescue under the Hindu Adoption and Maintenance Act under which a widowed daughter is his depend dependant ant under under specif specified ied condit condition ions.} s.} A truly truly insuf insuffic ficien ientt caring caring for a  person  person who dedicates dedicates her whole life for that family (minus the initial initial years  before marriage). This is because our legalistic concept of title to property 12

obscures the fact that man and woman are equal partners in marriage and have contributed together monetarily or non-monetarily to family welfare. As of now, she has a share as a ‘widow’. But then, which woman would aspire for ‘widowhood’ to obtain a share in the husband’s property? What she she nee needs is a shar sharee as a ‘wif ‘wife’ e’ by reco recog gnizi nizin ng her non-m on-mon oneetary tary contribution towards home-making specially in cases where she may not be a working woman.

There can be no two opinion on the point that equals must be treated equally. equally. Until marriage– daughter and the brother must be treated on par as regards all matter matterss likelike- food, food, clothi clothing, ng, shelte shelter, r, educat education ion,, marria marriage ge expens expenses es or    perfo performan rmance ce of marria marriage ge in a

manner manner befitti befitting ng the family standi standing ng and

status and means. Marriage brings about a change in the status and the liability shifts over to the husband from the father. As Manu puts it: Father is to protect the daughter in childhood; husband in her youth and the son in her old age. The saptapadi speaks of caring for each other treating each each othe otherr as ‘sak ‘sakha ha-fr -frie iend nd’. ’. Unde Underr the the pres presen entt lega legall syst system em also also the the husban husband d is under under primar primary y and person personal al obliga obligatio tion n to mainta maintain in his wife. wife. Howe Howeve verr she she is the the ‘forg ‘forgot otte ten n wife wife’’ as far far as her her prop proper erty ty righ rights ts are are concerned. The Act and the Amendment under consideration is not alive to the real life situations. This is the ultimate consequence.

In Conclusion- one obvious reality is that after marriage – either the wife must move into the husband’s family as in the patriarchal system or the husband must move into the wife’s family as under the matriarchal system. Following are some of the suggestions offered for the patriarchal system which is prevalent in our country: 13

•

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

•

After marriage treat husband and wife on an equal footing. Property earn earned ed duri during ng the the subs subsis iste tenc ncee of marri marriag agee be rega regard rded ed as join jointt   prope property rty subjec subjectt to mainte maintenan nance ce rights rights of the depend dependant ants. s. Let the legalistic concept of title not come in the way of recognition that both are equal partners in home making efforts e fforts

•

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

•

If the present 2005 amendment is to continue in its present form- in the interest interest of the harmonious harmonious family family relationrelation- link the inherit inheritance ance rights in agricultural land - to the quantum of property held by the dece deceas ased ed at the the time time of his his deat death h and and her her own own inco income me and and her  her  husband’s husband’s income and property worth. •

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

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

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Gist   Daughters Daughters right right to property property and Hindu Hindu Success Succession ion (amen (amendmen dment) t) Act  2005: another blow in harmonious family relations

Is our society moving away from family bonds and attachment with the shift from joint joint familie familiess to nuclea nuclearr famili families? es? Is the need need for family family securi security ty lessening with the society becoming more individualistic and independent? Have our law law makers given given another another blow at the time tested tested harmonio harmonious us relat relatio ions ns wove woven n into into the the fabr fabric ic of Hind Hindu u fami famili lies es?? The The firs firstt dig dig at the the relations began when daughters were made coparceners in the family of their   birth and the process of digging was completed by the 2005 amendment to the Hindu Succession Act. The amendment is an attempt to bring about mathematical equality between brothers and sisters as though equality in  property  property is the only criteria criteria by which to judge an egalitaria egalitarian n society. society. Our  lawmakers have conveniently forgotten to appreciate the daughter’s role and her status as a ‘wife vis a vis her husband’

Hindu Hindu Successi Succession on Act Act enacte enacted d in 1956

was commend commended ed by J.Dunc J.Duncan an

M.Derrett4 with his his observation observation that that the “law “law of Succession Succession has been been so comprehensively reformed that one need not fear of dying intestate. In a sense, Parliament has made a WILL for everyone in HSA. A person can die intestate with confidence that no close relation will be left unprovided for, let alone destitute. The Parliament has considered and set out in an order of   priority, the relations that in most cases are close to the deceased and whose claims have through the centuries been recognized by law or in the wills of  those those classes classes which which normal normally ly leave leave wills. wills. The predom predomina inantl ntly y patril patriline ineal al

4

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

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structure has been recognized but considerably modified by the undeniable claims of close cognate relations.” This is not to say that law must remain static because it was praised at one  point of time. But laws have to be realistic. Life of law is not logic but experience. In this case the logic of equality has been stretched to a breaking  point. Does the Act serve to promote the harmonious family relations or  does does it boomran boomrang? g?

Are the the liabil liabiliti ities es of her her parents parents exten extended ded beyo beyond nd

reasonable limits? Is the daughter in a practical position to discharge her  liab liabil ilit itie iess towa toward rdss her her paren parents ts afte afterr her her marri marriag age? e? Does Does this this kind kind of  amendment fit into the patriarchial system prevalent in India? For more click here

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