Lalit Sethi

    As India becomes increasingly aware of the need for equal rights for women, the Law Commission is now engaged in studying the changes in Hindu Law to give women a fair deal in the sharing of ancestral property. The Law Commission is treading carefully and seeking to ensure that its recommendations promote harmony in the social fabric and within families. It had sent out a detailed questionnaire to legal experts, including teachers, as well as business leaders, farm leaders, people in the services, authors, writers, journalists, non-governmental organisations, bar associations, social organisations, research scholars and other groups. It has since received hundreds of replies and is sifting through diverse opinions. Property rights have a deep impact on the national economy. The need to dispense gender justice raises deep political debate and at times acrimony in legislative forums, especially Parliament.

    The Law Commission’s recommendations will be the basis of amendments to the Hindu Succession Act, 1956 or the old Hindu Law to give Hindu women, especially daughters of a family, the right to ancestral property. The aim is to end gender discrimination in Mitakshara coparcenary by including daughters in the system., Mitakshara is one of the two schools of Hindu Law but it prevails in a large part of the country. Under this, a son, son’s son, great grandson and great great grandson have a right by birth to ancestral property or properties in the hands of the father and their interest is equal to that of the father. The group having this right is termed a coparcenary. The coparcenary is at present confined to male members of the joint family.

    By traditional definition the ancestral properties are those which are obtained from father or paternal grandfather or paternal great-grandfather or share obtained on partition or self-acquired properties or separate properties of an individual (like those inherited from a maternal grandfather) thrown into the joint family properties. In 1986 the Supreme Court held in an appeal that property obtained by a son under the Hindu Succession Act, 1956, would constitute his own separate property and not ancestral property. The Supreme Court thus removed a large category of properties that formerly were regarded as ancestral properties from contention.

    In Kerala the matriarchal system prevails. Under it the daughter rather than the son is the inheritor of property. The State abolished the joint family system there in 1976. The Law Commission is trying to ascertain the body of opinion whether the Mitakshara joint family should be retained or not. One more school prevails in West Bengal, Assam and most parts of Orissa. It is called Dayabhaga.

    The Law Commission is trying to ascertain whether the Mitakshara coparcenary system should be retained or discontinued.. If it is retained, does it not give better rights to males or does it protect the financially weaker members of the family? Does retention of the system help the agricultural activities of the family? If the system is to be scrapped is it because there is no harmony in the family and it is detrimental to the business or agriculture? Is it true that idle members of the joint family prosper at the expense of the hard-working? Have the legislative changes so far eroded the utility of the coparcenary system? Does it discriminate against women?

    Discrimination against women is the key issue before the Law Commission. Opinions are bound to be divided and legal brains will present arguments and counter-arguments on this issue. They will use words in the questionnaire itself to build up a case or demolish it as their perceived interests or thinking persuades them to proceed.

    As Mitakshara coparcenary consists only of male members what steps should be taken to end gender discrimination? Should Mitakshara coparcenary be abolished along with the right by birth? Or should the system be retained but the gender bias eliminated from it or the daughter and daughter of the coparcener given the rights equal to those of a son: that is, should she be treated like a son? An important question is whether women or daughters can be allowed to become managers or karta of the joint family.

    The objection to this issue of managing a joint family as visualised is that daughters may live away from the joint family after their marriage but it is well appreciated that women are fully capable of managing a business, taking up public life as well as manage large families as mothers. Another doubt being considered is that as managers of their fathers' joint family they could be susceptible to the influence of their husbands or husbands' families.

    A point under study is whether the coparcenary right should be limited to unmarried daughters or treat married and unmarried daughters alike. It is being felt that equal rights of succession conferred on sons and daughters could weaken the position of mother as she is not a coparcener. In Tamil Nadu, Andhra Pradesh and the Mysore area of Karnataka the mother’s share is diminished. Conferring the coparcenary right on the mother will be considered when various issues are assessed in depth. It is appreciated that conferring equal rights on daughters would entail problems: there may be attempts to defeat the provisions of the proposed laws by effecting partitions or by sales of properties. The Law Commission would like to consider incorporating provisions of the contemplated legislative measures that transactions prior to the enactment of laws would be declared invalid. This was done in the case of land ceiling laws.

    Under the Hindu Succession Act,1956, unmarried, deserted, separated or widowed daughters have a right of residence in the ancestral dwelling house but married daughters are excluded. While a male heir can seek partition of the ancestral home, the question before the Law Commission is whether a female heir can as well seek partition ? If the female heir is given the right, what will be the implications for the family?

    The Law Commission has taken note of a social problem: whether homestead rights should be conferred on the wife or widow as is the law in the USA and Canada. The broad feature there is that only one house can be declared a homestead and it cannot be proceeded against by the creditors. The Law Commission may also have received submissions that a wife could acquire the right to property of the husband or vice-versa. In Britain ten years of married life entitles the spouse to 50 per cent share of husband’s property. But the divorce laws in India may already cover the rights of the spouses and the Commission may not wish to interfere or comment on them.

    But on the question of ancestral property it has been noticed that women do not generally assert their statutory rights for fear of wounding the feelings of their male relations. The Commission will consider whether an inheritance certificate should be taken by all individuals after the death of an individual. Such documents would be needed for mutation in revenue, municipal and other records.

    A proposal to protect the rights of the mother will also be considered. It is being suggested that the family dwelling cannot be "alienated" without her express consent in writing where the coparceners are sons and daughters. In any case a satisfactory alternate accommodation should be provided for the widow who agrees to the sale of the dwelling house. A sale without her consent should be void so that she does not have to fight legal battles.