By Chandana M & Nimrah Rehman Sabiri (School of Law, Presidency University, Bengaluru)
Hindu law is a 6000 years old law, considered to be the most ancient and prolific law in the whole world. It is based on the principles of Dharma shastra and Arthashastra. Originally this law was established so that the needs of the people get fulfilled but it is also said and believed that it is established so that the people will follow it in order to attain Salvation, this concept was initiated for the welfare of the people. The basic principles and nature of Hindu law has been taken from the Manu smriti which has many rules provided against woman’s independence and gender equality These provisions were followed for a long time in India but it is important that we understand that some of these provisions are against the change in modern society where women have equal status to men.
For a country like ours which is rich in its cultural heritage and diversity it is important for us to preserve and maintain our culture and prosper along the changing modern times with neither of them interfering with each other. It is important for us to not forget and keep in mind our grassroots and where we come from and what culture we hold so that we as a country don’t lose our identity but also at the same time it is equally important for us to remember that in the changing modern days there are some cultures or Certain beliefs that we have in our communities that are outrageously against the human rights or equality that the modern society asks for.
Hindu law is a personal law and personal laws in India have been raised as a question in the name of gender inequality. The term personal law means that the law which is applicable to a certain group of people or communities follow the same religion and tradition. The Constitution of India provides equality before the law and equal protection of law despite of the fact that the person to whom it grants equality is a man or woman according to Article 14 of the Indian Constitution it is given that no person shall be denied equality before the law or the equal protection of law within the territory of India. It is also provided under Article 15 of the Indian Constitution that no person shall be discriminated on the basis of sex, caste, religion, race and place of birth though our constitution provides equality without any discrimination through these articles in the name of fundamental rights which cannot be denied at any cost though gender inequality has been a part of these personal laws there are still several provisions that denote the superiority of men and inferiority of woman in the modern Indian society. We have seen that there’s Gender Inequality in our personal religious laws. Somehow Religious personal laws promote patriarchy, as an example, in Muslim personal laws, marriages occur thanks to consent of oldsters, and there’s no specific age of marriage also so, it may cause to early marriages. If early marriage happens then, definitely there’ll be a scarcity of education.
In this article we have tried to sum up some of these provisions as to how it goes against gender inequality and what can be done in order to mend it.
The Succession and inheritance rights
In the olden days there were times when women were not considered the heir or the coparcener of the family and only a male could be the rightful hire and have the right over the property by birth. Men were given priority over every right and women were considered as secondary persons or the people who are much more inferior to men. Women were considered to be the property and the liability of men. Only a male child was given far more important and was considered to be the KARTA of the family or the head of the family and every decision related to the family especially the woman were taken by him and with his consent only, by this it is clear that it was a male dominated society and women were treated with such little recognition and were denied of Freedom and were restricted to just the household works.
There’s basically two systems of inheritance that are the Mitakshara and the Dayabhaga.
Mitakshara would determine who gets the property rights by the family relatives when the Karta of the family dies. While the mitakshara school states that the share of the property after the death of the father or grand father or both goes to the son, son’s son and son’s grandson with absolutely no share or no consideration to the female child or the daughters of the family.
Dayabhaga school was on the principle of religious efficacy where it states that the one who is competed to offer obligations to the deceased head member of the family shall be given the shares of the property but again according to the Hindu law only male heir of the family is supposed to do these religious offerings and not a female.
In 1956 the Successions Act was enacted, this Act broadened and widened the concept to order of succession where women’s rights were also recognised but after the Hindu succession amendment act in 2005 the daughter of the deceased was entitled to be a coparcener by birth and also have equal share and liability as son or any other male coparceners, this right of equal sharing the property would be given to women born before or after the amendment of this act. Another significant amendment was with reference to Section 14 of the Hindu Successions Act. Now this particular Section would have retrospective effect for females including widows. This Section states that any property which is owned by a female Hindu, whether acquired before or after the commencement of the said Act shall be held by her as a full owner and not during a limited capacity. This was a monumental step in terms of females getting equal rights with reference to property in India. Legal experts across India deemed this together of the foremost progressive moves that the Indian judiciary has taken within the past few decades. This Amendment Act brought various changes within the rights of girls towards the property, and established them as equal as of men.
As of now, a lady has equal rights as men within the property of a Hindu joint family. Section 23 of the Act was omitted because it divested the property of girls to get a partition of the homestead. The provision stated that a female can dwell within the house only if she is unmarried, separated, or widowed, which creates inequality. So, this section was omitted by the amendment Act and gave women the right of the dwelling house.
Section 4(2) of the Act was omitted; this Section stated that the Act shall not override the provisions of the other act. It created an inequality against women by obstructing them to capacitate the agricultural land. Section 6 of the Act creates an equal position for ladies by providing the proper of coparcener during which a daughter of the Hindu joint family is taken into account as a coparcener, and that they are entitled to all or any the rights and liabilities as a son. Further, the daughter holds the position of coparcener even after her marriage as because they’re given the proper of coparcener by virtue of their birth. As of now, a lady has equal rights as men within the property of a Hindu joint family.
Widow’s right in property
From the 1900s to 2020, there are several changes within the laws regarding what share of the property do females get during a Hindu Undivided Family (HUF). According to experts, The Classical Law period, which is from 1860-1937 saw the primary significant changes with reference to the laws for females in a HUF. In this period of time, a replacement law was passed which stated that no widow had the proper to demand partition, but on the opposite hand, the widowed mother received a certain share when there was a partition between brothers within the family. Moving onto the Act which was passed in 1937, there was an enormous development regarding the rights for widows during a HUF. Finally, during this Act, it had been stated the proper to partition would tend to widows, and this provides them the proper to step into the shoes of the deceased coparcener. It was also mentioned during this Act that the widows only had a limited right and didn’t have the proper to alienate whenever they wanted to. This move wasn’t welcomed by the whole population of India and received severe backlash from certain parts of the community. Some say this was the primary step to females getting equal rights when it came to properties during a HUF.
Section 24 of the Act states that the widow of the predeceased son, the widow of the predeceased son and therefore the widow of the brother aren’t entitled to the share in the husband property if she remarries. But she deserves a share within the husband property, therefore the said section was rescinded by the Amendment act 2005. Finally, Section 30 of the Act of the was substituted by certain words like “disposed by him or her” rather than him which creates a right for ladies to dispose of her property. Even though all this was an excellent move by the government, there was a caveat altogether this. The caveat, during this case, was that these Sections would apply as long as the daughter and therefore the father were alive on September 9, 2005 (the date the amendment was passed). This caveat wasn’t welcomed by tons of the population as this set a condition that had to be fulfilled before the proper would tend to the daughters.
In Prakash v. Phulavati (2016) the choice was given by a two-judge bench headed by Justice A.K. Goel, where it was held that if the coparcener (i.e. The father) is dead before 9th September 2005 (the date on which the amendment came into force), his daughter will have no inheritance right to be entitled within the coparcenary property. So, the advantage of such amendment will only tend to “living daughters of living coparceners” on 9th September 2005.
Danamma v. Amar Singh (2018) is one of the important cases where the court held that the daughters have equal rights to successorship and in the inherited property the same has a son . The court had also interpreted the objective behind the amendment act of 2005 with whose basic target was to eliminate the gender biasness and discrepancy between the genders. It stated that the father needn’t necessarily be alive on the enactment of the Hindu Succession (Amendment) Act, 2005 for daughters to become a coparcener. A two-judge bench headed by Justice A.K. Sikri has held that daughters could claim their coparcenary property even if their fathers were dead before the enactment of the Hindu Succession (Amendment) Act, 2005.As these conflicting perspectives were given by the benches of equal strength, that led to the regard to the larger bench on the present case i.e., a three-judge bench within the case of Vineeta Sharma v. Rakesh Sharma (2020).
In Vineeta Sharma v. Rakesh Sharma (2020) The Supreme Court disagreed with the Prakash v. Phulavati case and agreed with the Danamma v. Amar Singh case. The father need not necessarily be alive on the enactment of the Hindu Succession (Amendment) Act, 2005 for daughters to become a coparcener. Daughters could claim their coparcenary property even if the father were dead before the enactment of the Hindu Succession (Amendment) Act, 2005.The daughters have their right in the ancestral property since birth as they are a coparcener since birth in the same manner as a son.
These were some of the important landmark cases that played a vital role in achieving the positive change in the inequal personal laws, not just the Hindu law there are various other gender biased inequalities in other personal laws as well. Even if it’s just baby steps, it’s important for us to constantly keep making such small changes, in order for us to achieve the greater nation that we dream of.
“Half of the Indian population too are women. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude, and yet they need been subjected to all or any equities indignities, inequality and discrimination” said by Justice K. Rama Swamy. There are various religions and private laws too, which were formulated as per the need of particular religion. Religious personal laws have been discriminatory with women. There are mentions of the many discriminatory jurisprudences for the ladies . Such discriminations are not present in Civil laws. The civil laws have a far better position of girls as compared to spiritual personal laws. It can be due to patriarchal setup and culture of dependency of women on men in India that prevailed before the dawn of the 21st Century. Religion may be a matter of belief; belief may be a matter of conscience, and freedom of conscience is that the bedrock of recent civilization. Today the status of women is as equal as of men and women are independent enough in every aspect of the changing modern Indian society. Hence having those old principles in the personal laws for the women of today’s society could be contradictory to their dignity and fundamental rights. These personal laws still have many principles which totally disregard and dominate women. But the judicial system in India has taken many steps to eradicate these contradictory provisions. The amendments in these principles are a step towards justice to women. The interpretations and judgments in favor of the women against these impugn provisions by the judiciary are appreciative and playing an important role to provide equal status and position to the women as men so that they can equally participate and enjoy their basic human rights in the Indian society without any discrimination. In a multi-religious country like India which has opted for a secular State, it’s the proper of each citizen to elect to be governed by secular laws in personal matters, and it’s the duty of the state to supply an optional secular code of family laws. But the Indian Parliament is adopting an ambivalent attitude thanks to political compulsions. Let the ladies fly within the sky by removing the oppression posed on her and enlighten her world with new dreams, aims and aspirations.