GENDER JUSTICE IN HINDU SUCCESSION LAWS
By Aaratrika Bal
In the Vedic times and the ancient ages, women had the liberties to exercise various privileges and rights just like men. They were considered equal at almost all levels. But there was only one sector where women were discriminated, it was the matter of inheritance. They were not completely excluded from the inheritance but there was major male dominance. In the article, we will discuss the provisions of the Hindu Succession Act explaining gender justice and equality. The current status of men and women are also analyzed. It also includes the attest amendments of the act.
An act came out during colonial rule. It was called a Hindu Woman’s Right to Property Act, 1937. This was done to bring equity in the succession laws. This act recognized the rights of widows. The widows of the son and grandson respective were entitled to the property of the interstate along with the intestate’s widow.
In the case of Dagadu Balu vs Namdeo Rakhmaji And Ors. limited the succession or inheritance of agricultural land for women (daughters, wives, etc.). Initially, women could inherit land or property only if the same was mentioned in the will, they were supposed to get nothing if there was no will. In the absence of a will, the property would get divided only amongst the sons of the interstate.
The Hindu Succession Act is valid to the following:
• “any person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or follower of the Brahmo, Prarthana or Arya Samaj”;
• “any person who is Buddhist, Sikh by religion”; and
• “to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that the concerned person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed”.
The section also explains as to who shall be measured as “Hindus”, “Buddhists”, “Jains” or “Sikhs” by religion:
• “any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion”;
• “any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged”;
• “any person who is convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion”.
A person shall be treated as a Hindu, even when he is not Hindu by religion, but fulfills all the provisions of the Act. The Hindu law of inheritance is set out in the Hindu Succession Act (1956) and was acclaimed as a reformative law around then. This law furnished ladies with the privilege to acquire property but on an unequal balance with men by and large.
“Mitakashara school of Hindu law perceives a distinction between ancestral property and self-acquired property. It likewise perceives an element by the name of coparcenary". Section 6 of the Hindu Succession Act speaks about “coparcenary”. It says:
“6. Devolution of interest in coparcenary property. — (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, —
a) by birth become a coparcener in her own right in the same manner as the son;
b) Have the same rights in the coparcenary property as she would have had if she had been a son;
c) Be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.”.
In the case of a Hindu Joint Family, the framework was different and there were gender disparities. The male members of such a joint family were supposed to inherit the property and wealth by virtue of their birth in the family. The females hardly got any share. Only if the male member died leaving only a female heir behind, the female was entitled to get some part of the property but that was too less compared to that of a male heir. The Hindu Succession (Amendment) Act that was passed in September 2005, tried to remove these disparities by paving the way for daughters also inheriting the property of intestate in case of a Hindu joint family. Despite the amended law coming into place, it is not unusual for wedded women to surrender their shares in the joint family or ancestral property (of their birth) in favor of the
male members, in order to sustain affable familial bonds. They may then challenge such settlement or sacrifice in Indian courts in the future.
There are many gender disparities in the succession act and women had to face a lot of discrimination in this sector of personal laws. Steps should be taken in order to promote gender equality. In perspective on the distinctive individual laws and innately unfair traditions set up, there is a developing uproar for a uniform common code in India to acquire a standard arrangement of rules overseeing progression, in addition to other things. Will such a code accomplish the much-required sexual orientation equality in connection to various legacy principles and traditions, without encroaching on the central right of a lady to rehearse her religion? That, obviously, relies upon the idea of the code. A dynamic perfect will be to get place a populist structure that gives equivalent progression rights to ladies independent of their religions and traditions and furthermore sharpens residents on gender equality. Its high time that we get over the old traditions that discriminate women from exercising their own rights and start building new provisions.