Family law- Synopsis

Female as Karta

The Law Commission of India in its 174th Report on “Property Rights of Women: Proposed
Reforms under the Hindu Law” in May 2000 mentioned in the introduction itself that
“Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of
the law made by the legislature itself. This is particularly so in relation to laws governing the
inheritance/succession of property amongst the members of a Joint Hindu family. It seems that
this discrimination is so deep and systematic that it has placed women at the receiving end.
Recognizing this the Law Commission in pursuance of its terms of reference, which, inter-alia,
oblige and empower it to make recommendations for the removal of anomalies, ambiguities and
inequalities in the law, decided to undertake a study of certain provisions regarding the property
rights of Hindu women under the Hindu Succession Act, 1956”.

The Hindu law of intestate Succession has been codified in the form of The Hindu Succession
Act, 1956, which bases its rule of succession on the basic Mitakshara principle of propinquity,
i.e., preference of heirs on the basis of proximity of relationship. Prior to 1956, there used to be
two major schools of Hindu law viz. Mitakshara and Dayabhaga which laid down different
principles of succession. There was no uniformity in the rights of the Hindus following different
schools to succeed to the property of a Hindu who died intestate i.e., without leaving a will
behind him. Therefore, before 1956, the property of a Hindu woman was divided into two heads
viz. (a) Stridhan (b) Woman's Estate. Stridhan literally means woman's property. The Hindu law
interpreted Stridhan as the properties received by a woman by way of gift from relations. It
included movable as well as immovable properties. The texts relating to Stridhana except in the
matter of succession are fairly adequate and clear.

The property rights of the Hindu women are highly fragmented on the basis of several factors
apart from those like religion and the geographical region which have been already mentioned.
Property rights of Hindu women also vary depending on the status of the woman in the family
and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife
or widow or mother.
Section 14 of the Hindu Succession Act removed the disability of a female to acquire and hold
property as an absolute owner, and converted the right of a woman in any estate already held by
her on the date of the commencement of the Act as a limited owner, into an absolute owner. The
provision is retrospective in that it enlarged the limited estate into an absolute one even if the
property was inherited or held by the woman as a limited owner before the Act came into force.
The only exception, in the form of a proviso, is for the acquisitions under the terms of a gift, will
or other instrument or a decree, or order or award which prescribe a restricted estate.

The framers of the Indian Constitution took note of the adverse and discriminatory position of
women in society and took special care to ensure that the State took positive steps to give her
equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit
discrimination against women but in appropriate circumstances provide a free hand to the State
to provide protective discrimination in favour of women. These provisions are part of the
Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the
Directive Principles which are no less fundamental in the governance of the State and inter-alia
also provide that the State shall endeavour to ensure equality between man and woman.

The implications of this fundamental change are wide. Since a daughter now stands on an equal
footing with ason of a coparcener, she is now invested with all the rights, including the right to
seek partition of the coparcernary property. Where under the old law, since a female could not
actas Karta of the joint family, a s a result of the new provision,she could also become Karta of
the joint Hindu family. Sub se ction (2) stipulates that any property to whicha female Hindu
becomes entitled, under sub sec tion (1), would be held by her with all the incidents of
coparcenary ownership. To retain the Mitakshara joint family and at the same time to put a
daughter on the same footing as a son with respect to the right by birth, right of survivorship and
to claim partition at any time, will be to provide for a joint family unknown to law and
unworkable in practice.” However there was one striking feature of all these four state
amendments – they held that only a daughter who was unmarried at the time of the amendment
would be entitled to be a coparcener. The amending Acts of Andhra Pradesh, Tamil Nadu and
Maharashtra add three sections namely 29A, 29B and 29C and Karnataka adds them as Sections
6A, 6B and 6C of the Act.

Judical reform in Women position in the society:

Nagpur position- Hunoomanpersaud’s case, Pandurang Dahake v. Pandurang Gorle, I.T Commr.
v. Lakshmi Narayan, etc.

Madras position- Seethabai v. Narasimha, Radha Ammal v. I.T commissioner, etc.

Bombay position- Rakhmabai v. Sitabai

Orissa HC- Maguni Padhano v. Lokananidhi Lingaraj

Patna HC- Sheogulam v. Kishun Chaudhari

It is clear from the foregoing that though the property rights of Indian women have grown better
with advance of time, they are far from totally equal and fair. There is much that remains in
Indian women’s property rights, that can be struck down as unconstitutional. The response of the
judiciary has been ambivalent. On one hand, the Supreme Court of India has in a number of
cases held that personal laws of parties are not susceptible to fundamental rights under the
Constitution and therefore they cannot be challenged on the ground that they are in violation of
fundamental rights especially those guaranteed under Articles 14, 15 and 21 of the Constitution
of India.

The law commission also has rightly observed that although the Hindu Succession Amendment
Act, 2005 has conferred upon the daughter of a coparcener status but there is still a reluctance to
making her a Karta. This seems to be patently unfair as women are proving themselves equal to
any task. Since they can act as coparcenaries then they must also be given the powers of Karta.
The shastra is clear that in the absence of senior member a junior member (if he has reached the
age of legal competence) may incur debts for the needs of the family, and in the absence of a
male member a female member may do so. The Sanskritic texts empower women to act as Karta
in instances like when the husband is away or missing or the son is yet to attain majority.
Equality for women is not just a matter of equity for the so-called weaker sex, but a measure of
the modernity of Indian society and the pragmatic nature of our civilization.