Various legal reforms have been carried out since India’s independence, including the equal share of property for daughters. However, equal status remains illusory. The establishment of laws and the implementation in accordance with them is necessarily a lengthy process. The government, the legislature, the judiciary, the media and civil society all have to play their roles, each in their own areas of competence and in concert in order for the process to be swift and effective.
To quote Justice Sujata V. Manohar of the Supreme Court of India
“…It is not easy to eradicate deeply held cultural values or alter traditions that perpetuate discrimination. It is fashionable to denigrate the role of legal reform in bringing about social change. Obviously, law alone may not be enough. The law is only an instrument. It must be used effectively. And this effective use depends both on a supportive judiciary and on the social will for change. An active movement for social reform, if accompanied by legal reform, duly applied, can transform society.”
historical perspective
An effective social reform movement needs the help of the law and a sympathetic judiciary to achieve its goals. Women’s empowerment, equal rights for men and women, equitable distribution of property, etc., are some of the issues we discuss every day, in life, in newspapers and on television. But the reality that bites is that these issues remain “unresolved.” In reality, not much has been done to create equality between the male and female genders. The male still dominates society.
If it is a matter of property, then legally the man dominates society. There are numerous laws that say there should be no discrimination between the sexes, but in reality none are effective enough to spark a revolution; a change in society.
According to the Indian Succession Act 1925, everyone is entitled to the same inheritance except Hindus, Sikhs, Jains, Buddhists and Muslims. Under this law, the daughter of a person who dies intestate would only be entitled to a quarter of her son’s share, or Rs 5,000/-(Stres Dhan), whichever is less. However, the Travancore High Court held that the Indian Succession Act would not apply to Christian women from the state of Travancore in view of the Travancore Christian Succession Act 1916. Under state law, the daughter of a person who dies intestate would be entitled to only a quarter of the child’s share or Rs 5,000/- (Stres Dhana), whichever is less. The application of state law was challenged before the High Court in the famous case of Mary Roy (Mary Roy v. State of Kerala, AIR 1986 SC 1011; 1986(2) SCC 209). The Court ruled that the Cochin and Travancore Christian Succession Acts had ceased to be operative in the States Reorganization and that they automatically made the Indian Succession Act applicable to all Christians in Kerala, granting them equal inheritance rights.
The Hindu Enactment Act of 1956 established that women have the same inheritance rights as men; and abolished the lifetime estate of heiresses. However, this law could not do what was necessary as there was another law, the Mitakshara co-shareholders (Hindu Law) which annulled the previous law.
According to Mitakshara’s co-partners, in a joint family, a daughter receives a much smaller share of the property compared to the son. While the father’s property is shared equally between brother and sister; the brother, moreover, has the right to a share in the co-partners from which the sister is excluded.
Recommendations of the Women’s Committees/Commissions on the Status of Women in India
In 1975, the Indian government established a committee on the status of women to assess the current legal provisions in relation to women, so that a woman is not left completely helpless.
Some important recommendations that this committee made were that legislative measures should be taken to bring Christian women from Kerala under the Indian Succession Act. The Indian Succession Act should be extended to Goa and Pondicherry respectively to undo the relegation of widows to the fourth position in succession and undo the lower position of Christian women by not being considered full owners of property . As far as property succession among Hindus is concerned, the birthright should be abolished and the Mitakshara partnership should be converted to Dayabhaga (retention of the Mitakshara partnership perpetuates inequality between sons and daughters as only men can be coparticipants, and inheritance is only through the male line). The exception provided in Section 4 (2) of the Hindu Inheritance Act relating to return of tenancies should be abolished (this provision, in its present form, excludes from the scope of the Act the return of tenancy rights under of various state laws).
Discrimination between married and unmarried daughters with regard to the right of inheritance of houses caused by section 23 of the Hindu Succession Act should be eliminated.
The right to testate should be limited under the Hindu Succession Act, so that heirs are not deprived of their inheritance rights. There is a need for legislation in Muslim law to give an equal share of the property to the widow and daughter along with the sons as is done in Turkey.
In terms of marital property, the economic value of the contribution made by the wife through domestic work must be legally recognized for the purpose of determining the ownership of marital property, instead of continuing with the archaic test of the real economic contribution; In case of divorce or separation, the wife must have the right to at least one third of the assets acquired at the time of the marriage and during the marriage.
The National Commission for Women had also recommended certain amendments to the laws relating to women and property. Under the Indian Succession Act, 1925, it is suggested that Sections 15 and 16 of the Act be amended by removing the compulsory connection of the domicile of the wife with that of the husband. In addition, it recommended that the appointment of the testamentary guardian can be a right of both parents acting at the same time. Widows must be granted a letter of administration to deal with the deceased husband’s estate, unless the Court excludes them for sufficient reasons (Section 219(a)). ).In the Hindu Inheritance Act, 1956, he suggests that an equitable distribution should be made not only of the sick man’s separate or self-acquired property, but also of the undivided interests in the shared property. by birth in his own right in the same way as her son; must be entitled to claim for survival and have the same responsibilities and disabilities as a child; in addition, the shared property will be divided and allocated equally.
The right of any heir to claim the partition of a home only occurs after liquidating the rights of the widowed mother in the event that the deceased male is intestate.
A notable tooth in this situation was made by the Hindu succession. [Andhra Pradesh] Amendment Act of 1985, which started a remarkable development. This law established that, in any circumstance, the rights of the daughter are equal to those of the son. This new law found that the Mitakshara system violated the fundamental right of equality granted to women in the Indian Constitution. After Andhra Pradesh, the states of Tamil Nadu, Maharashtra and Kerala have also subsequently amended their laws to include women as members of co-partners.
The Rajya Sabha on 16 August 2005 passed the Hindu Succession (Amendment) Bill, 2004, (Hindu Succession (Amendment) Act 2005), which is now a law granting daughters and sons equal rights of property. According to this law, any woman, regardless of her marital status, has the full right to inherit ancestral property just like a child of the family. This law has completely abolished the Hindu Succession Act of 1956 by giving the same rights to daughters in the ‘Hindu Mitakshara Shared Estate’ as to sons. However, if either of the parents had built any property and had made their own will, this law would be ineffective.
Myth
Previously, the law used to put male heirs in a superior position by providing that they will inherit an additional independent share in the joint property above what they inherit equally with female heirs; the very concept of co-partnership was that of “an exclusive club of male members”. But, surprisingly, even today, even after the new law, co-participation continues to be a main right of men; To be sure, the law provides for an equal division of the share among all heirs, male and female, upon the death of a male partner, but in practice, the picture is entirely different. Legally, self-acquired intestate property passes equally between male and female heirs; but, even current heiresses are required to give up their share by making quitclaim deeds with their signature and are commonly filed in court. If the intestate includes a house, the heiresses do not have the right to partition until the male heirs choose to divide their respective parts. If a Hindu woman dies intestate, her property passes first to her husband’s heirs, then to her husband’s father’s heirs, and finally only to her mother’s heirs; therefore, the property of the intestate Hindu woman remains within the bond of her husband.
Conclusion
In order to truly achieve an equal inheritance for all, the laws have been changed. With regard to property succession among Hindus, the birthright has been abolished and the co-partnership Mitakshara School of Hindu Law has been converted into the Dayabhaga School which means equal distribution not only of separated or acquired property for himself of the sick man, but also of undivided interests in joint assets. Daughter of a partner in a Hindu joint family governed by the Mitakshara Law is now a partner by birth in her own right in the same way as a son; she has the right to claim for survivorship and has the same responsibilities and disabilities as a child; now shared property to be divided and allocated equally. Theoretical reforms so far have not been adequate to give all Indian women a property right on the same terms and conditions as men. Varies by region and religion. Even where the law has granted a right, conventions and practices do not recognize it. Women themselves enjoy their rights. Women, as daughters, wives, daughters-in-law, mothers or sisters tend to lose out and often experience deprivation. This is further accentuated when they lose the security of family, as single, divorced/separated or widowed women. Therefore, social awareness of rights under the law, attitudes to adhere to them, and a mindset to change law and practice to ensure social justice is urgently needed.
Therefore, a social reform movement is necessary for such awareness and change of mindset. Since ‘marriage’ is the most traditional institution for starting a family and preserving it, making registration of marriages mandatory. It is suggested that to achieve more power for women we must increase awareness of the laws through educational institutions, general awareness and legal awareness programs. ; sensitize the judiciary, administrators and legislators on the implementation of the laws in letter and spirit; consider long-pending recommendations to amend legal provisions on succession and strengthen the administrative machinery to that end.
