FAMILY LAW- II PROJECT F E MALE AS KARTA
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PROJECT SUBMITTED TO: DR. SAMREEN HUSSAIN (ASSISTANT PROFESSOR OF LAW)
PROJECT SUBMITTED BY: R ISHI ISHI SEHGAL Semester IV, Section B
R OLL OLL NO. 115
AM MANOHAR LOHIYA NATIONAL LAW DR . R AM U NIVERSITY.
LUCKNOW, UTTAR PRADESH
ACKNOWLEDGMENT
I, Rishi Sehgal, would like to humbly present this project to Dr. Samreen Hussain. I would first of all like to express my most sincere gratitude to Dr. Samreen Hussain for her encouragement and guidance regarding several aspects of this project. I am thankful for being given the opportunity of doing a project on ‘Female as Karta’. I am thankful to the library staff as well as the IT lab staff for all the conveniences they have provided me with, which have played a major role in the completion of this paper. I would like to thank God for keeping me in good health and senses to complete this project. Last but definitely not the least, I am thankful to my seniors for all their support, tips and valuable advice whenever needed. I present this project with a humble heart
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TABLE OF CONTENTS
CHAPTER 1 : INTRODUCTION ............................................................................................. 3 CHAPTER 2: WOMEN’S POSITION AFTER RIGHT TO PROPERTY ACT 1937 ............. 4 CHAPTER 3: WOMEN’S POSITION IN COPARCENARY .................................................. 7 CHAPTER 4: WOMEN’S PROPERTY RIGHTS IN THE PATRIARCHAL FAMILY ......... 9 CHAPTER 5: WOMEN AS A KARTA .................................................................................. 12 ARGUMENTS IN FAVOUR ............................................................................................................ 14 ARGUMENTS AGAINST WOMEN BECOMING KARTA ..................................................................... 15
CHAPTER 6: JUDICIAL REFORMS.................................................................................... 16 THE CASE LAWS- IN SUPPORT ..................................................................................................... 17
CONCLUSION........................................................................................................................ 20 BIBLIOGRAPHY .................................................................................................................... 22
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CHAPTER 1 : INTRODUCTION The Karta of a Hindu joint Family in Hindu Law is the senior most member of the family entitled to manage family affairs, in his absence the next eldest male member after him is entitled to be the Karta. A Karta is the caretaker of the whole family and looks after the welfare of all the members of the family. His relationship with other members is a relationship of trust and confidence. At least one male member is necessary to constitute a coparcenary. But the question arises that if no male member is left in the family or if all male members are minors then who becomes the Karta ? or Can a female member of a Hindu Joint Family become a Karta then in such circumstances ? This situation makes us rely on various judicial pronouncements which have dealt with this question. The view of the judiciary is inconsistent. The Law Commission of India in its 174th Report on “Property Rights of Women: Proposed Reforms under the Hindu Law” in May 2000 mentioned in the introduction itsel f that “ Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu family. It seems that this discrimination is so deep and systematic that it has placed women at the receiving end. Recognizing this the Law Commission in pursuance of its terms of reference, which, inter-alia, oblige and empower it to make recommendations for the removal of anomalies, ambiguities and inequalities in the law, decided to undertake a study of certain provisions regarding the property rights of Hindu women under the Hindu Succession Act, 1956 ”. Much like those of women of any other country, property rights of Indian women have evolved out a continuing struggle between the status quoist and the progressive forces. And pretty much like the property rights of women elsewhere, property rights of Indian women too are unequal and unfair: while they have come a long way ahead in the last century, Indian women still continue to get less rights in property than the men, both in terms of quality and quantity. What may be slightly different about the property rights of Indian women is that,
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alongwith many other personal rights, in the matter of property rights too the Indian women are highly divided within themselves. Therefore every religious community continues to be governed by its respective personal laws in several matters – property rights are one of them. Infact even within the different religious groups, there are sub-groups and local customs and norms with their respective property rights. Thus Hindus, Sikhs, Buddhists and Jains are governed by one code of property rights codified only as recently as the year 1956, while Christians are governed by another code and the Muslims have not codified their property rights, neither the Shias nor the Sunnis. Also, the tribal women of various religions and states continue to be governed for their property rights by the customs and norms of their tribes. To complicate it further, under the Indian Constitution, both the central and the state governments are competent to enact laws on matters of succession and hence the states can, and some have, enacted their own variations of property laws within each personal law. There is therefore no single body of property rights of Indian women. The property rights of the Indian woman get determined depending on which religion and religious school she follows, if she is married or unmarried, which part of the country she comes from, if she is a tribal or non-tribal and so on. Ironically, what unifies them is the fact that cutting across all those divisions, the property rights of the Indian women are immune from Constitutional protection; the various property rights could be, as they indeed are in several ways, discriminatory and arbitrary, notwithstanding the Constitutional guarantee of equality and fairness.
CHAPTER 2: WOMEN’S POSITION AFTER RIGHT TO PROPERTY ACT 1937 Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to a diversity in the law. Consequently, in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. 4
The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex. A woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. The Mitakshara law also recognises inheritance by succession but only to the property separately owned by an individual, male or female. Females are included as heirs to this kind of property by Mitakshara law.Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila sub schools of Mitakshara recognised only five female relations as being entitled to inherit namely - widow, daughter, mother paternal grandmother, and paternal great-grandmother 1. The Madras sub-school recognised the heritable capacity of a larger number of females heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who are expressly named as heirs in Hindu Law of Inheritance (Amendment) Act,1929. The son's daughter and the daughter's daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal to women, recognised a nunmber of other female heirs, including a half sister, father's sister and women married into the family such as stepmother, son's widow, brother's widow and also many other females classified as bandhus.The Act of 1937 gave absolute rights to all Hindu women over a certain portion of Stridhan. The part of Stridhan, acquired by the female independently or the part that was gifted to her by her parents gave her an absolute right over the aforesaid portions. She became the absolute owner of such Stridhan. However, the form of Stridhan, acquired by her from her in-laws, gave her only a limited right over such variety. On her death, the latter portion went to her reversioners (the lot which would have acquired the property had the female not existed in the first place). As per the provisions of this Act, if a male member of a Mitakshara Joint Hindu family died and was survived by his widow then the latter could claim a share of the deceased coparcener subject to certain conditions. Under this Act, the widow was also conferred the right to demand partition and claim the share that 1
Basu, Monmayee, Hindu Women and Marriage Law: From Sacrament to Contract ( 2001, Oxford University Press).
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the deceased coparcener was entitled to. This legislation was later repealed by the Act of 1956. The Hindu Women’s Rights to Property Act, 1937, ameliorative in character, intended to g ive better rights to women in respect of property but without interfering with the established Law relating to joint family. Subsections (2) and (3) of Section 3 of the Act reveal that the legislature intended that the Hindu widow should have in the joint family property the same interest to qualify the nature of that interest i.e., it Would be a limited interest known to Hindu law as "Woman’s Estate" or to use the corr ect expression ‘Hindu Widow's Estate." The very use of the word woman’s estate prima facie established that she could alienate it for the purposes permitted under the Hindu law i.e., “Legal necessity”, “Religious purposes” and “benefit of estate”. Thus the woman’s estate under the Hindu Woman’s Rights to Property Act, 1937 has all the characteristic features of woman’s estate which were there under the old law. The widow’s powers of alienation have been discussed in detail. Her powers under the 1937 Act are the same because the nature of the property is the same. The act has only given a statutory, recognition to her “woman’s estate”. Surrender means renunciation of the estate by the female owner. Shehas the power of renouncing the estate in favour of nearest reversioners. This means that by a voluntary act, she can accelerate the estate of the reversioner by conveying absolutely estate and thereby destroying her own estate. This is an act of self-effacement on her part and operates as her death will. In Natwar vs. Dadu 2, the Supreme Court held that it is the self-effacement by the widow that forms the basis of surrender and not the ex-facia transfer by which the effacement is brought about. For a valid surrender, the first condition is that it must be of, the entire estate, though she may retain a small portion for her maintenance , second condition is that it must be made in a favour of the nearest reversioner or reversioners, in case there are more than one of the same category. Surrender can be made in favour of female reversioner also. The third and the· last condition is that surrender must be bonafide, and not a device of dividing the estate with the reversioners. When a Hindu female surrender her estate the estate vests in the reversioners by the operation of law, and no act of acceptance by the reversioners is necessary. No formalities are 2
Natvarlal Punjabhai v. Dadubhai Manubhai AIR 1954 61.
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necessary. A sale of estate for consideration, to the reversioners cannot be regarded as surrender. The Hindu law of intestate Succession has been codified in the form of The Hindu Succession Act, 1956, which bases its rule of succession on the basic Mitakshara principle of propinquity, i.e., preference of heirs on the basis of proximity of relationship. Prior to 1956, there used to be two major schools of Hindu law viz. Mitakshara and Dayabhaga which laid down different principles of succession. There was no uniformity in the rights of the Hindus following different schools to succeed to the property of a Hindu who died intestate i.e., without leaving a will behind him. Therefore, before 1956, the property of a Hindu woman was divided into two heads viz. (a) Stridhan (b) Woman's Estate. Stridhan literally means woman's property. The Hindu law interpreted Stridhan as the properties received by a woman by way of gift from relations. It included movable as well as immovable properties. The texts relating to Stridhana except in the matter of succession are fairly adequate and clear. Manu defined Stridhana as that what was given before the nuptial fire, what was given at the bridal procession, what was given in token of love and what was received from a brother, a mother, or a father? The property inherited by a woman from a male or female was not considered as Stridhana and it was not her absolute property for the purpose of inheritance. However Bombay school considered the property inherited by a woman form a male other than widow, and mother etc. as Stridhan. Under all schools of Hindu law, the property obtained by a woman in lien of maintenance by adverse possession and property purchased with Stridhan was considered as Stridhan.
CHAPTER 3: WOMEN’S POSITION IN COPARCENARY The property rights of the Hindu women are highly fragmented on the basis of several factors apart from those like religion and the geographical region which have been already mentioned. Property rights of Hindu women also vary depending on the status of the woman in the family and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife or widow or mother. It also depends on the kind of property one is looking at: whether the property is hereditary/ ancestral or self-acquired, land or dwelling house or matrimonial property. Prior to the Hindu
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Succession Act, 1956 ‘Shastric’ (Hindu Canonical) and customary laws that varied from region to region governed the Hindus. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal in eastern India and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat in the western part and Marumakkattayam or Nambudri in Kerala in far south and Mitakshara in other parts of India, with slight variations. Mitakashara school of Hindu law recognises a difference between ancestral property and selfacquired property. It also recognises an entity by the name of “coparcenary”. A coparcenary is a legal institution consisting of three generations of male heirs in the family. Every male member, on birth, within three generations, becomes a member of the coparcenar y. This means that no person’s share in ancestral property can be determined with certainty. It diminishes on the birth of a male member and enlarges on the death of a male member. Any coparcener has the right to demand partition of the joint family. Once a partition takes place, a new coparcenary would come into existence, namely the partitioned member, and his next two generations of males. For this reason coparcenary rights do not exist in self-acquired property, which was not thrown into the common hotchpotch of the joint family. Thus the concept of a birthright, at which a person acquires rights on his birth even if the ancestor is still alive, is fundamental to an understanding of the coparcenary. In fact, the birth of a male child diminishes the right of the ancestor instantly, as each coparcener has an equal share in the undivided whole. As contrasted with this, inheritance, whether testamentary or intestate, is a right that accrues on the death of a person. Inheritance can only be in that property which a man leaves on his death.3 Until then, a person has an unrestricted right to enjoy the property or alienate it. The Hindu Succession Act enacted in 1956 was the first law to provide a comprehensive and uniform system of inheritance among Hindus and to address gender inequalities in the area of inheritance – it was therefore a process of codification as well as a reform at the same time. Prior to this; the Hindu Women’s Rights to Property Act, 1937 was in operation and though this enactment was itself radical as it conferred rights of succession to the Hindu widow for the first time, it also gave rise to lacunae which were later filled by the Hindu Succession Act (HSA). HSA was the first post-independence enactment of property rights among Hindus – it
3
Purva Chadha, “Hindu Family Property law in India and Gender Equality; Analysis of th e Hindu Succession Act 1956”, Vol 2, SCJ J 16. (2002).
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applies to both the Mitakshara and the Dayabhaga systems, as also to persons in certain parts of South India previously governed by certain matriarchal systems of Hindu Law such as the Marumakkatayam, Aliyasantana and Nambudri systems. The main scheme of the Act is: The hitherto limited estate given to women was converted to absolute one. Female heirs other than the widow were recognized while the widow’s position was strengthened. The principle of simultaneous succession of heirs of a certain class was introduced. In the case of the Mitakshara Coparcenary, the principle of survivorship continues to apply but if there is a female in the line, the principle of testamentary succession is applied so as to not exclude her. Remarriage, conversion and unchastity are no longer held as grounds for disability to inherit. Even the unborn child, son or daughter, has a right if s/he was in the womb at the time of death of the intestate, if born subsequently. Under the old Hindu Law only the “streedhan” (properties gifted to her at the time of marriage by both sides of the family and by relatives and friends) was the widow’s absolute property and she was entitled to the other inherited properties only as a life-estate with very limited powers of alienation, if at all. Even under the 1937 Act, the concept of “limited estate” continued. Section 14 of the Hindu Succession Act removed the disability of a female to acquire and hold property as an absolute owner, and converted the right of a woman in any estate already held by her on the date of the commencement of the Act as a limited owner, into an absolute owner. The provision is retrospective in that it enlarged the limited estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force. The only exception, in the form of a proviso, is for the acquisitions under the terms of a gift, will or other instrument or a decree, or order or award which prescribe a restricted estate.4
CHAPTER 4: WOMEN’S PROPERTY RIGHTS IN THE PATRIARCHAL FAMILY A Hindu father in patriarchal family enjoyed absolute power just as the Roman father in ancient Rome. The scriptures undoubtedly contributed much to make the father, the head of the family a despotic ruler. Manu said that three persons, a wife, a son and a slave are 4
The Kerala Joint Family System (Abolition) Act 1976, the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, the Hindu Succession (The Tamilnadu Amendment) Act 1989, the Hindu Succession (Karnataka Amendment) Act 1994, the Hindu Succession (Maharashtra Amendment) Act 1994.
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declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong. Similarly Narada held the view that a son could be independent only if his parents are dead; during their lifetime he is dependent even though he is grown old18. So in a patriarchal family women and children did not have property rights. The wife was put into the group of chattels and slaves. They had an oppressed and subjugated life in the traditional patriarchal families.5 There were also fears among the orthodox Hindu men that if women were given property rights families would breakup. In 1948 there was an All India Anti Hindu Code Convention. It was argued that the introduction of women’s share would result into disintegration of Hindu family system which had been working as a co-operative system for ages for preservation of family ties and property. It was also pointed out that the inclusion of daughter in the line of inheritance is due to European influence. The history of Hindu Law reform starts with the Hindu Law committee (Rau Committee) set up in 1941. It was followed by second Committee in 1944. The committee finally submitted its report to the Federal Parliament in 1947. The recommendations of the committee were debated in the provincial Parliament. There was strong opposition against the introduction of monogamy, divorce, abolition of coparcenery and inheritance to daughters from the orthodox Hindu community. The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State and inter-alia also provide that the State shall endeavour to ensure equality between man and woman Notwithstanding these constitutional mandates/directives given more than fifty years ago, a woman is still neglected in her own natal family as well as in the family she marries
5
Purva Chadha, “Hindu Family Property law in India and Gender Equality; Analysis of the Hindu Succession Act 1956”, Vol 2, SCJ J 16. (2002)
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into because of blatant disregard and unjustified violation of these provisions by some of the personal land. Women’s right to property has been substantially improved by the Hi ndu Succession Act 1956. The concept of women being entitled to a limited estate when they acquire property by inheritance is abolished and women are entitled to an absolute estate like men when they inherit any property. Again the daughter of a predeceased son and the daughter of a predeceased daughter are raised to a higher rank. They became Class – I heirs and get a share along with the son, and other Class – I heirs. The daughters are included in the Class – I in order to remove the discrimination on the basis of sex. Similarly succession to a women’s property or stridhanam of whatever nature is made uniform irrespective of the nature of stridhanam. In the same way the distinction between male and female heirs in the case of succession has been taken away and now they are treated on equal basis if they belong to the same degree of relationship. Women will no longer be disinherited on the ground of unchastity.6 The Law Commission was concerned with the discrimination inherent in the Mitakshara coparcenary under Section 6 of the Hindu Succession Act, as it only consists of male members. The Commission in this regard ascertained the opinion of a cross section of society in order to find out, whether the Mitakshara coparcenary should be retained as provided in section 6 of the Hindu Succession Act, 1956, or in an altered form, or it should be totally abolished. There were other questions involved also, like should women be karta in absence of male members ? The Commission's main aim was to end gender discrimination which is apparent in section 6 of the Hindu Succession Act,1956, by suggesting appropriate amendments to the Act. Accordingly, the amendment was made by the legislature in December 2004 and it conferred equal property share from the ancestral property on the daughter. By birth a daughter would acquire property rights and would be like any other coparcenary. In the face of such multiplicity of succession laws diverse in their nature, property laws continued to be complex and discriminatory against women. The social reform movement during the pre-independence period raised the issue of gender discrimination and a number of ameliorative steps were initiated. 6
Shelly Saluja and Soumya Saxena, “Changes brought in the position of women after the 2005 (Amendment)” available at: http://www.legalservicesindia.com.
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CHAPTER 5: WOMEN AS A KARTA In the entire Hindu Joint Family ‘Karta’ or ‘Manager’ occupies a very important position. There is no office or institution in any other system of the world can be compared with it. He is a person with limited power but he possess such vast power with in ambit of joint family which nobody enjoys. As per Hindu Law, a ‘karta’ is defined as the senior-most family member, entitled to manage family affairs. This position has traditionally been held by men.The feelings of piety and benevolence have an abiding place in human heart, they must find expression in religious and charitable gifts.
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Therefore, the Karta or manager of the joint Hindu family was given extended powers and he could alienate not merely his own share but a portion of the joint family for family necessity or for the benefit of family so as to bind the interest of all the coparceners, no matter whether minor or adults. The foundation of this doctrine could be found· in the text of Vyasa which was quoted and relied upon by Vijnaneswara and which runs as follows: "Even a single individual may conclude a donation, mortgage, or sale of immovable property, during a season of distress, for the sake of the family, and especially, for pious purposes." After amendment made by Hindu Succession (Amendment) Act, 2005, daughter can be coparcener of HUF like the sons of HUF. After her marriage she becomes member of her husband’s HUF and continues to be a coparcener of her father’s family. Being a coparcener, she can also seek partition of the dwelling house where the family resides and she can also dispose of her share in coparcenery property at her own will. 8 If a Hindu dies, the coparcener property shall be allotted to the daughter as is allotted to sons. If a female coparcener dies before partition, then children of such coparcener would be eligible for allotment, assuming a partition had taken place immediately before her demise. A widow of a pre-deceased son even though remarried is now eligible for share in property as legal heir of the pre-deceased son of the family. Female as Karta Many courts had held that only a coparcener can become Karta of HUF.
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Purva Chadha, “Hindu Family Property law in India and Gender Equality; Analysis of the Hindu Succession Act 1956”, Vol 2, SCJ J 16. (2002) 8 Purva Chadha, “Hindu Family Property law in India and Gender Equality; Analysis of the Hindu Succession Act 1956”, Vol 2, SCJ J 16. (2002).
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Since, a female was not considered as coparcener, she was not empowered to act as Karta prior to amendment in Hindu Succession Act. However, w.e.f. 6thSeptember, 2005, after amendments made by Hindu Succession (Amendment) Act, 2005 in respect of position of female member, the daughter of coparcener shall by birth become a coparcener in her own right in the same manner as the son. The Hindu Succession Act came into force on 17 thJune, 1956. Fundamental changes have bee n brought about in the
Hindu
Succession
Act,
1956
by
amending
it
recently
in
2005. The basic change is that Section 6 has been substitutedby a new section. The section stipulates that a daughter wouldbe a coparcener f rom her birth, and would have the same right sand liabilits as a son. The daughter would hold property to which she is entitled as a coparcener with all the incidents, rights and liabilities of coparcenary property and would be construed as property being capable of being disposed off by her by either a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability to which a daughter was subjected. The
implications
of
this
fundamental
change
are
wide. Since a daughter now stands on an equal footing with ason of a coparcener, she is now invested with all the rights, including the right to seek partition of the
coparcernary
property. Where under the old law, since a female could not actas Karta of the joint family, a s a result of the new provision,she could also become Karta of the joint Hindu family. Sub se ction (2) stipulates that any property to whicha female Hindu becomes entitled, under sub sec tion (1), would be held by her with all the incidents of coparcenary ownership. To retain the Mitakshara joint family and at the same time to put a daughter on the same footing as a son with respect to the right by birth, right of survivorship and to claim partition at any time, will be to provide for a joint family unknown to law and unworkable in practice.” However there was one striking feature of all these four state amendments – they held that only a daughter who was unmarried at the time of the amendment would be entitled to be a coparcener. The amending Acts of Andhra Pradesh, Tamil Nadu and Maharashtra add three sections namely 29A, 29B and 29C and Karnataka adds them as Sections 6A, 6B and 6C of the Act.
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Thus, these amendments state that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son. Thus, a daughter will also be entitled to be a karta of the joint family, and will by virtue of that position exercise the right to spend the income for joint family properties for legal necessity of benefit of the A questionnaire was issued by the Law Commission to elicit the views of the public regarding giving of rights to a daughter in the Mitakshara property of a Hindu undivided family. This questionnaire consisted of three parts having 21 questions. Sixty-Seven respondents have replied to the questionnaire.1 30 respondents were from the profession of law and the rest comprise sociologists, NGOs etc. About the case of Daughter becoming a Karta in the Joint Family, about half the respondents wanted the daughter to become a Karta in the Joint Family. The normal position of law does not give such a right to a women except under special circumstances. If such a right is sanctioned by law then what will be the pros and cons ? or why should we sanction such a right, for what reasons should a women be allowed to become the manager of a joint family? To answer all these questions we will have to look into arguments which favour the women becoming a Karta and the arguments which do not favour such a disposition. ARGUMENTS IN FAVOUR
MAKING HER THE KARTA WOULD MAKE HER POSITION MORE RESPECTABLE
Despite the Constitution guaranteeing equality to women, there are still many discriminatory aspects in the Hindu law in the sphere of property rights. In our society maltreatment of a woman in her husband's family, e.g. for failing to respond to a demand of dowry, often results in her death. But the tragedy is that there is discriminatory treatment given to her even by the members of her own natal family. Thus, if she is made the Karta of the family, then all the members of the family will respect her because of her position and women abuse will be controlled. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.
AFTER THE HINDU SUCCESSION AMENDMENT ACT, 2005 WOMEN ARE RECOGNIZED AS COPARCENERS
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In the Hindu system, ancestral property has traditionally been held by a joint Hindu family consisting of male coparceners. Coparcenary as s een and discussed earlier in the present work is a narrower body of persons within a joint family and consists of father, son, son's son and son's son's son. A coparcenary can also be of a grandfather and a grandson, or of brothers,or an uncle and nephew and so on. Thus ancestral property continues to be governed by a wholly partrilineal regime, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. Since a woman could not be a coparcener, she was not entitled to a share in the ancestral property by birth. A son's share in the property in case the father dies intestate would be in addition to the share he has on birth. But after the amendment daughters have from birth coparcenary rights. So they can be kartas as they are now recognized as coparcenors.
WOMEN ARE FULLY CAPABLE OF MANAGING A BUSINESS, TAKING UP PUBLIC LIFE AS WELL AS MANAGE LARGE FAMILIES AS MOTHER:
There is still a reluctance to making her a Karta as the general male view is that she is incapable of managing the properties or running the business and is generally susceptible to the influence of her husband and his family, if married. This seems to be patently unfair as women are proving themselves equal to any task and if women are influenced 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 the girl will be the equal inheritor of her ancestral property, the in-laws may not insist on dowry. It is being suggested that the family dwelling will not be "alienated" without her express consent. Thus it will make her 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 affairs and the y will have a say in business. ARGUMENTS AGAINST WOMEN BECOMING K ARTA:
Daughters cannot be made Karta as they live away from joint family after their marriage the daughter-in-laws do not also originally belong to their in-law’s family, and therefore their 15
possibility of becoming a Karta is also ruled out. If women are made Karta then this will lead to involvement of women in business affairs this will lead to disturbed domestic affairs. The women of a house-hold are usually busy with their domestic work, even if they are made Karta they will act on 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 incapable of running a business . If women are made Karta will they be entitled to any kind of maintenance? This the key issue of the problems which is to be answered.
CHAPTER 6: JUDICIAL REFORMS The possibility of female being the Karta in presence of senior male member is being ruled out. But the question is whether in the absence of the manager, whether by prolonged journeys abroad or by dying without leaving another manager to succeed him in his function, a female could act as a manager. No doubt, it is true that he can act as guardian of Hindu Minors by the Hindu Minority and Guardianship act, 1956 but it abstains her from interfering with the exclusive powers of managers to deal with the interests of minors in the Joint Family Property. So, the solution lies in our religious text which is Dharmashastra. It says that alienation can be done by the wife of an absent, or the widow of a dead manager, of family property belonging to numerous minors, unable to enter into contractual relationships in their own persons, yet reasonable for maintaining dependents and carrying the various burdens of the family. Here, the benefit of the family is the touchstone, not the identity of the alienor. The acts of a female member acting as a manager should be positive for the benefit of the Family. Such acts will be binding upon the manager when he returns or appears on the scene by simply coming of age as the case ma y be. It is further supported by Katyana, Smritichandrika, Bhavasvamin and Yagnavalyka Smriti. Some of the Sanskrit text says that The manager (or householder, actual or eventual) is liable to accept (or admit) all alienations made for the purposes of the Family by a pupil, apprentice, slave, wife, agent or bailiff. Narada says- A
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debt contracted by his wife never binds the husband, except that incurred in a time of distress: expenses for the benefit of the family fall upon males. Even at this objection is being raised, ‘Are not women declared by the Shastra to be incapable, or unfit for independence?” Wherever a male member of the family is available, his signature should be taken rather than that of any female’s acts. But the answer lies in the following statement. The women in question is de facto Svantantra: as soon as the husband returns or her son reaches majority she becomes Partantra again, but meanwhile the responsibility rests with her, and powers should obviously be allowed to her accordingly. THE CASE LAWS- IN SUPPORT
The Nagpur position
In Hunoomanpersaud’ s case9 which was one of the greatest cases in the history of Hindu Law dealt with the powers 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 in what capacity she purported to act, but whether the act was necessary or in the minor’s interest as understood by the law. In Pandurang Dahake v. Pandurang Gorle10, there the widowed mother passed a promissory note for necessity as guardian of her two minor sons. She was a defacto manager and was held to have managerial powers, and the sons could not repudiate the debt. In I .T Commr. v. L akshmi Narayan 11, the mother as karta of the undivided family consisting of herself and her two minor sons entered into a partnership renewing thereby the partnership which her late husband had had with his brother. The court said that at Dayabhaga law woman could be coparcener and so possibly even managers, and noted that a female might be the manager of a religious endowment. The Act of 1937 has improved the status of the Widow. The Madras Position 9
Hunoomanpersaud Panday v. Mussumat Bahooee Munraj Koonweree (1856) 6 M.I.A. 393 Pandurang Dahake v. Pandurang Gorle AIR 1947 Nag 178. 11 I.T Commr. v. Lakshmi Narayan 1979 ITR 628 AP. 10
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In Seethabai v. Narasimha12 there the widows claimed that they were undivided members of the coparcenery by the operation of the act of 21937. They objected to the appointment of a guardian for the property of the minors. The court appointed one widow guardian of one of the minor and a stranger was appointed the guardian of the other. None of the widows it was held that could be a manager. To be a manager one must be a pukka coparcener, a male with a birth right and not a mere statuary interest. In Radha Ammal v. I .T commissioner 13, Madras a mother , guardian of minor sons , purported to execute a deed of partnership admitting a stranger as a power in the ancestral business. It was held that this was outside her powers and the deed could not be registered under section 26(a) of the Income Tax Act 1922. A woman could not be a manager. The argument that Hunooman persaud’s case allowed the act of a de-facto manager to be binding even if she were a woman, was not decided, much less examined. This was a weak case in Madras decision which was in any case strictly formal and anti-Quarin in approach. The Bombay High Court
In Rakhmabai v. Sitabai 14 that a step mother as manager of a Joint Family consisting of her co-widow and minor step-son and a minor step daughter and had the power to resist the appointment of a guardian of the property of the step-son. She was the managing the estate and her authority should not, it was urged be undermined by such an appointment. The learned court said that the proper course was to appoint a guardian for the coparcener y Property. A widow could not be a manager of Joint Family Property. The case of Seethabai was agreed with. The Orissa High Court-
In Maguni Padhano v. Lokananidhi Lingaraj 15, it was held that a mother, whose husband is alive, cannot be a manager. She might indeed act as guardian of her son, if her husband was dead and perhaps as defacto guardian. But as manager she had no powers whatever. Laxmi Narayan’s case was not followed. The Principle that a woman could be a manager was decisively rejected. 12
Seethabai v. Narasimha (1945) 1 MLJ 60. Radha Ammal v. I.T commissioner AIR 1957 Mad 568. 14 Rakhmabai v. Sitabai AIR 1952 Bom 160. 15 Maguni Padhano v. Lokananidhi Lingaraj AIR 1956 Ori 1. 13
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The Patna High Court
In Sheogulam v. Kishun Chaudhari 16, the court denied that a mother of a minor son, during the long absence of her husband , might act as karta and incur debts for family purposes. All such debts would not be binding upon the family. The case of Maguni was relied upon. On the surface it might seem that Madras has the best of it. But a further examination makes us hesitate. The natural desire that deserted mothers and widows should have ample powers to look after their minor son’s interest, acting for necessity or the benefit of the Family, has expressed itself, as things will, in an irregular way, seeing that it was frustrated in expressing itself in some quartes in a regular way.
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Sheogulam v. Kishun Chaudhari AIR 1961 Pat 212 .
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CONCLUSION It is clear from the foregoing that though the property rights of Indian women have grown better with advance of time, they are far from totally equal and fair. There is much that remains in Indian women’s property rights, that can be struck down as unconstitutional. The response of the judiciary has been ambivalent. On one hand, the Supreme Court of India has in a number of cases held that personal laws of parties are not susceptible to fundamental rights under the Constitution and therefore they cannot be challenged on the ground that they are in violation of fundamental rights especially those guaranteed under Articles 14, 15 and 21 of the Constitution of India. On the other hand, in a number of other cases the Supreme Court has tested personal laws on the touchstone of fundamental rights and read down the laws or interpreted them so as to make them consistent with fundamental rights. Though in these decisions the personal laws under challenge may not have been struck down, but the fact that the decisions were on merits go to show that though enactment of a uniform civil code may require legislative intervention but the discriminatory aspects of personal laws can definitely be challenged as being violative of the fundamental rights of women under Articles 14 and 15 and can be struck down. Infact in one case the Supreme Court has held that that personal laws, to the extent that they are in violation of the fundamental rights, are void. In some judgments the Supreme Court has expressly recommended to the State to carry out its obligation under Article 44 of the Constitution and formulate a uniform civil code . There is a definite swing is towards a uniform civil code and one can see that the courts are going to play a significant role to usher it in. Another heartening trend is that the Indian courts are increasingly relying on international standards, derived from various international declarations and conventions. Specifically CEDAW has been referred to and relied upon by the Supreme Court of India in some judgments . These line of judgments give a firm basis for the women of India to demand gender justice and equal rights on par with international standards. Road ahead: Apart from the ongoing struggle for a uniform civil code in accordance with the Constitutional framework, today the India women are fighting for rights in marital property, denied uniformly to them across all religious boundaries. There is also a significant movement in some of the hill states, towards community ownership of land by women by creating group titles and promoting group production and management of land and natural resources by landless women for joint 20
cultivation or related farm activity. Land rights would be linked directly to residence and working on land under this approach being lobbied for under the Beijing Platform for Action. However, the challenges are many: social acceptance of women’s rights in property leads them. In a country where women continue to be property themselves the road ahead promises to be long and bumpy. Under the Shastric Law, a daughter on marriage ceases to be a member of the parental family, but the Amending Acts have changed her position, which is quite alien to Hindu patriarchal notions. Though her position as defacto manager was recognized when mothers acted as guardians of their minor sons after the death of their husbands, the dejure conferment of the right eluded her. The law commission also has rightly observed that although the Hindu Succession Amendment Act, 2005 has conferred upon the daughter of a coparcener status but there is still a reluctance to making her a Karta. This seems to be patently unfair as women are proving themselves equal to any task. Since they can act as coparcenaries then they must also be given the powers of Karta. The shastra is clear that in the absence of senior member a junior member (if he has reached the age of legal competence) may incur debts for the needs of the family, and in the absence of a male member a female member may do so. The Sanskritic texts empower women to act as Karta in instances like when the husband is away or missing or the son is yet to attain majority. Equality for women is not just a matter of equity for the so-called weaker sex, but a measure of the modernity of Indian society and the pragmatic nature of our civilization.
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BIBLIOGRAPHY Books:
Diwan Paras (2008), Modern Hindu law, Twentieth Edition, Allahabad Law Agency. Shastri Gopalchandra (2008), a Treatise on Hindu Law, Eighth Edition, New Delhi: Ashoka Law House. Subzwari’s (2008), Hindu Law (Ancient & Codified), Second Edition, Ashoka Grover & Sons. Gupte’s, Hindu Law, As Amended by the Hindu S uccession (Amendment) Act, 2005 (39 of 2005) (w.e.f. 09-09-2005), Premier Publishing Company. Saxena Dr. Poonam Pradhan (2011), Family Law Lectures, Family Law-II, Third Edition, Nagpur: Lexis Nexis Butterworths Wadhwa. Agarwal R.K, Hindu Law, 19th Edition, Central Law Agency
Websites
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Articles
Shelly Saluja and Soumya Saxena, “Changes brought in the position of women after the 2005 (Amendment)” available at: http://www.legalservicesindia.com
The Kerala Joint Family System (Abolition) Act 1976, the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, the Hindu Succession (The Tamilnadu Amendment) Act 1989, the Hindu Succession (Karnataka Amendment) Act 1994, the Hindu Succession (Maharashtra Amendment) Act 1994.
Purva Chadha, “ Hindu Family Property law in India and Gender Equality; Analysis of the Hindu Succession Act 1956 ”, Vol 2, SCJ J 16. (2002)
Rajya Sabha Parliamentary Bulletin Part II. (No 41884) dated the 27th December, 2004. 22
Law Commission of India report on ‘Property Rights of Women: Proposed Reforms under the Hindu Law’, May 2000
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