Patriarchy And Family Law In India: A Transition
Introduction Patriarchy, a social system where men hold superior positions, is quite prevalent in the Indian legal system as well, especially in the field of family law. The Indian women are still struggling to free herself from the chains of biasness of the society as well as of the laws. India is a land where patriarchy has existed… Read More »
Introduction Patriarchy, a social system where men hold superior positions, is quite prevalent in the Indian legal system as well, especially in the field of family law. The Indian women are still struggling to free herself from the chains of biasness of the society as well as of the laws. India is a land where patriarchy has existed since time immemorial and has become an instrument to justify violence, sexism and whatnot. The status of women has been reduced to that of a mere object, not...
Introduction
Patriarchy, a social system where men hold superior positions, is quite prevalent in the Indian legal system as well, especially in the field of family law. The Indian women are still struggling to free herself from the chains of biasness of the society as well as of the laws. India is a land where patriarchy has existed since time immemorial and has become an instrument to justify violence, sexism and whatnot. The status of women has been reduced to that of a mere object, not just by men but also by social institutions like law.
Law, too, has been an instrument to discriminate women. One such category of law is Family law. The women, in their different roles, have not been kept at par with the men in the field of family law. The scenario that existed years ago is in transition and is changing for better, but there still exist evils that make it difficult to be dealt with, in order to make laws gender-neutral and non-biased.
I. The Status of Women under Hindu Law: Now and Then
The beginnings of women’s studies in Indological writings can be said to have been made with the publication of Ram Mohan Roy’s first tract on sati in 1918 in which he tried to prove that the burning of widows was not an ancient custom prescribed by the Dharmasatras but a later evil which came to be practised in the region where the widow had the right of inheritance.[1]
A number of scholars have pointed out that the condition of women in the Early Vedic Age was satisfactory and how were given equal rights. The great decline in the status of women, corresponding to the consolidation of private property and commodity production, seems to have occurred around about 1000 B.C.[2] This decline pushed women of the country towards dependency and oppression and assigned her an inferior status.
With the introduction of Hindu Code which comprised of these Acts – Hindu Marriage Act, 1955; Hindu Succession Act, 1956, Hindu Adoption and Maintenance Act, 1956 and-achieved to provide only two rights to women- the right to divorce and property rights. The Code which is based on ancient sources of Hindu Law came with certain terms and conditions for women.
1. Adoption Rights
Initially, a Hindu woman could not adopt a child on her own. She could also not to be the natural guardian of her minor during the lifetime of her husband. With the introduction of The Personal Amendment Act of 2010, a new Section 8 was added and an unmarried woman was given the right to adopt.
According to Section 8, any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption:
Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.”
But a married woman still cannot adopt, with or without the consent of her husband, whereas a married husband can adopt with the consent of his wife.
2. Property Rights
Similarly, the property rights of Hindu women are highly fragmented due to various factors such as religion, geographical region and her position in the family, which is mostly seen in relation to the male she is related to. During the ancient time, the property rights were in mostly in favour of the Hindu male. Hindu women’s legal right to inherit property has been restricted from the earliest times in Indian culture.[3] Manu, in the ancient text of Manusmriti, writes:
“Her father protects her in childhood, her husband protects her in youth and her sons protect her in old age; a woman is never fit for independence.”
Even the emergence of two schools of Hindu Law-Dayabhaga and Mitakshara didn’t provide any relief to the women and their property rights.
The property laws for Hindu were codified in 1956 after the introduction of Hindu Succession Act, 1956, which was applicable to Hindus along with Sikhs, Jains, and Buddhists, and applied to men and women equally. But these laws were also blatantly biased against women.
3. Inheritance Rights of Hindu Women
The wives are entitled to an equal share in their husbands’ property as Class-I heirs. A married Hindu woman also has exclusive rights over her individual property. She is the sole owner and manager of her assets whether these are earned, inherited or gifted.[4]
A mother is entitled to an equal share as a Class-I heir, whereas a sister inherits as a Class-II heir. But Section 15 and 16 of the Act still are biased in nature against women. As per these sections, if a woman dies intestate, her self-acquired property goes to husband’s heirs, not her parents. In the case of a man, the property is inherited by his relatives, not the woman’s heirs.
4. Hindu Women’s Coparcenary Rights
Coparcenary is a narrower system of joint-heirship within a joint family and refers to a person who has the capacity to gain legal right in the ancestral property by birth. It is a creation of law and cannot be created by the parties, except by adoption. The first codified law to introduce inheritance rights to women was the Hindu Law of Inheritance Act, 1929.
Another landmark legislation which conferred property rights on women was Hindu Women’s Right to Property Act, 1937. But it was introduction of Hindu Succession Act, 1956 that widened the scope of rights of Hindu women. It focused on achieving equality guaranteed by Article 14 of the Constitution of India.
The act also abolished the concept of limited estate. Daughters could legally inherit from their fathers’ property. But this was only limited to a father’s separate property, not ancestral. Only after the introduction of Hindu Succession (Amendment) Act, 2005, the law provided equal rights to daughters in their father’s ancestral property. By this amendment, the daughters, whether married or unmarried, gained equal coparcenary rights in the property.
5. Woman as a Karta
Karta is usually the senior-most member of a Hindu Undivided Family, who manages all the properties and looks after all other members of the family. In the case of Narendra Kumar J. Modi v.CIT[5], it was held that a junior coparcener can become a Karta only if the senior-most male member gives up his right. Before the Hindu Succession Act, 2005, a female could not become a coparcener, and as a result, she could also not become the Karta. However, this conservative approach was amended by amending Section 6 of the Hindu Succession Act, 1956, whereby a female was given equal coparcenary rights. This also gave her the right to the Karta.
This was reaffirmed in the case of Sujata Sharma v. Manu Gupta.
“The Delhi High Court has held that the impediment which prevented a female member of a HUF from becoming its Karta was that she does not possess the necessary qualification of coparcener-ship. Now that this disqualification was removed by the 2005 Amendment, there is no reason why Hindu women should be denied the position of a Karta.”[6]
Ironically, instead of empowering women, these laws have had a contrary effect, according to the report by the University of Essex, New York University and King’s University, London. “The report states that awarding inheritance rights to women between 1970 and 1990 led to increased female foeticide and higher female infant mortality rates, a finding supported by the Economic Survey 2017-18.”[7] This may be because women are still considered liability or “paraya dhan” while certain incentives are attached to the rewarding property to sons, such as it stays in the family only, and according to a lot of parents, a son creates wealth and looks after them.
Despite the transition that has occurred in the law and the position of women, some areas still require work. Moreover, there’s an urgent need to raise awareness among women regarding their rights. While education and independence are highly promoted, there are certain rights women are unaware of. For example, many women are unaware that the Stridhan belongs to them absolutely. Many of them are still unaware of their maintenance and alimony rights. Our country must have come a long way, but it’s only halfway there.
[1] Suvira Jaiswal, Women In Early India, 42 Problems And Perspectives Proceedings of the Indian History Congress, 54-54 (1981).
[2] Sophie M. Tharakan & Michael Tharakan, Status of Women in India, 4 A Historical Perspective Social Scientist, 117–115 (1975).
[3] Debarati Halder & K. Jaishankar, Property Rights Of Hindu Women: A Feminist Review Of Succession Laws Of Ancient, Medieval And Modern India, 24 Journal of Law and Religion, 119-115 (1975).
[4] Riju Mehta, Inheritance rights of women: How to protect them and how succession laws vary, Available at https://economictimes.indiatimes.com/wealth/plan/inheritance-rights-of-women-how-to-protect-them-and-how-succession-laws-vary/articleshow/70407336.cms?from=mdr, (last accessed 29 April 2020).
[5] 1976 AIR 1953
[6] A female can be a Karta, if eldest amongst coparceners #indianlaws, Available at https://www.tclindia.in/a-female-can-be-a-karta-if-eldest-amongst-coparceners-indianlaws/, (last accessed 2020).
[7] Riju Mehta, Inheritance rights of women: How to protect them and how succession laws vary, Available at https://economictimes.indiatimes.com/wealth/plan/inheritance-rights-of-women-how-to-protect-them-and-how-succession-laws-vary/articleshow/70407336.cms, (last accessed 29 April 2020).
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