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SUCCESS-SON

By : ARVIND JAIN on 07 October 2008 Report Abuse Print Print this
 



Success- son

 (DAUGHTER’S RIGHT OF INHERITANCE)

         

  Indian woman has come a long way. She has adorned the offices of the Prime Minister of the country, Governors and Chief Ministers of states. She can rise to high ranks in the police and can even join the Defence forces. In fact, there is no legal bar to her climbing the ladder of success in any profession. The Constitution of India prohibits discrimination against her on ground of sex in matters concerning access to public places, use of wells, tanks, bathing ghats, and roads which are wholly or partly funded by the state or in matters of appointments to offices under the state. What else does she want? Why this hullabaloo of women’s emancipation?

 

The question is, ` does this Constitutional guarantee translate into any tangible social, economic and political rights for the average woman?’ Have one Prime Minister three Supreme Court judges, a few High Court judges, Governors, Chief Ministers and corporate executives been able to get the village woman a share in the land she co-ploughs throughout her life, in addition to cooking and caring for the actual heirs she has herself produced? Social equality can never be attained without economic and political equality. It is quite plain that Constitutional idealism, ameliorative legislation, fierce social activism and though sporadic, judicial activism have in fifty four years, not resulted in redistribution of all public and private assets so as to ensure any substantial share for this fifty percent of the population. 

 

The position is no different in many other parts of the world. A report of the International Labour Organization proclaims that it would take women a thousand years to attain equality with men in terms of political and economic power. This is because men own and control ninety eight percent of the world’s property. This property has been passed on to them generations after generations by way of succession and the process is likely to continue unabated in future. In the absence of an heir, the property shall be confiscated by the state

 

In India, the Hindu Succession Act proudly proclaims equal shares in the deceased male’s property for his sons, daughters, widow and mother. This would mean substantial property should be owned or at least, capable of being owned.in near future, by a large number of women. Quite a departure from the earlier position when a woman could at the most enjoy some property during her lifetime, which after her death, would revert to her husband’s male heirs. However, a look at the actual working of this provision in conjunction with other statutory provisions and customs supposed to have divine sanctions explodes the myth in no time.

 

To begin with, any Hindu (including Buddhists, Sikhs, and Janis), Christian or Zoroastrian is legally free to bequeath any proportion of his property (including his share in the joint family property) to anyone he fancies. No rules of succession apply here. The right is totally unfettered. (Muslim law of course allows only one third of the property to be bequeathed by a will. (Nothing more.) In fact, the whole concept of succession becomes relevant only if the person dies without making a will. A piece of paper written in presence of two witnesses without even being registered and found hidden in a trunk or a cupboard anytime after his death will effectively get around this so called socially progressive piece of legislation drafted after years of deliberations by the intellectuals of the society. Secondly, succession laws do not apply to agricultural lands, which can generally be passed on only to male heirs. This in a country where agriculture is the avocation of half the population! Only if there is no male heir living, the widows of the household are eligible to inherit. Last in the list come the unmarried sisters and daughters. However, married sisters and daughters are kept completely out.

 

In the Patriarchal society, succession to property requires existence of legitimate children, which in turn depends upon the institution of marriage. Children born outside wedlock are considered illegitimate and bastards (for what fault of theirs?) and hence, not entitled to succeed to their father’s property. They are however entitled to equal share in their mother’s property (in a rare case that she has any.)The legitimate child belongs to the man and the illegitimate to the woman; the glorious tales of the illegitimate heroes and Mritunjyas of the Mahabharata, notwithstanding. Even the greatest of warriors if illegitimate, shall die an orphan. Illegitimate sons and daughters can at best, claim a maintenance allowance from their father but not a share in his property. Their mother shall not be entitled even to that since she was never a legally wedded wife. After all, she was at the most a lover, concubine or a prostitute. The marriage may be void or voidable, children born of it are legitimate, but marriage, it has to be. These legitimate products of void and voidable marriages however cannot claim inheritance to the Joint Family Property (1994,Madras High Court)

 

The definitions of son and daughter in the succession laws do not include stepsons and stepdaughters. Consequently if a divorcee remarries, her children from the previous marriage shall not inherit the property of her second husband but the second husband shall inherit the property of their mother. Even a child adopted by the woman before her marriage will only be a stepson. The gist of the matter is that a man’s property can be inherited only by children fathered by him and not by any other man. The second husband will at the most accept the woman but will have nothing to do with her children. He cannot be saddled with their responsibility at all. The son may still have some privileges but not the daughter.

 

Thousands of classics and epics from The Ramayana and Abhijananshakuntalam to Mujhe Chand Chahiye have eulogized the son. One’s own son. If this is the way a stepchild is treated by the society and the law, what an illegitimate child has to go through is anybody’s guess. It is this legal and social discrimination between legitimate-illegitimate and real-step children on which the otherwise rotting institution of marriage is thriving the world over. Ensuring legitimacy of children requires absolute chastity and sexual purity on the part of the woman and it is for this reason that the man considers it his most pious duty to exercise absolute control and proprietary rights over her body.

 

Of course, there is no legal bar to a man and woman maintaining conjugal relations with mutual consent even without marriage. However, children born of such a union will be illegitimate. Secondly such relations are certainly considered immoral even if not illegal. It is in tune with the legal and moral sanctions that marriage remains a necessity But this is not the only reason. Over the last few years, contraceptives and facilities of abortion have been freely available and can be made use of in order to avoid giving birth to illegitimate children. Perhaps one can even brave.the tag of immorality labeled by the society. But in that case, how does a man get a heir to his property? How will his name survive his death? The urge for immortality of the family name makes it necessary for him to enter into the socially sanctified matrimonial alliance. On the other hand, he has made the same necessary for the woman in order to attain economic security and legal-social acceptability. Only an economically self sufficient and fiercely independent woman (a socialite butterfly, as she is generally referred to) can afford the risk of living without marriage. As yet, such cases are only exceptional. Presently, the institution of marriage is inevitable. The position of women within this institution is no better than that of domestic slaves. Male domination, proprietorship and control exercised by the males over the females are still the hallmarks of a family. All the education, social consciousness and awakening over the past decades have failed to evoke any response from within the thick walls of the invincible fortress of patriarchy.

 

Once we accept that there is no alternative to the institution of marriage, it is not difficult to understand why men consider their sons as the only logical (and legal) heirs to their family’s name, business, agriculture,land,property and capital. Daughters are merely pawns belonging to some other person (family) & after the Kanyadan,will go where they belong. The wife should not be entitled to inherit because she has after all, come from some other family. She has produced the actual heirs and her job is over. What’s the use spending money and bringing up somebody who will eventually leave & join some other family? So much better if there are no daughters. In earlier times, they had to be strangulated the moment they were born. Now it is even easier, one can always get the female fetus aborted. No hassles at all. Even if she is born and one gets stuck with her, she can be got rid of by marrying off in her tender age. An eleven years old Ameena can be legally and validly married to a sixty years old Sheikh. Who will keep guarding somebody else’s belonging? With this mindset that prevails in the society, what can one expect a daughter to inherit from her father? The daughters can dream of inheritance only if there is no son. But usually in such a case, the father (especially, if Hindu), would not forget to adopt a son.

 

The ritual of adopting a son has a number of religious-spiritual doctrines spun around it. The Hindu philosophy requires a son to complete the last rites of a man after his death for his soul to rest in peace. It is however plain that all these theories have been strategically woven to ensure one thing : male monopolization of property. Prior to 1956,only sons could be adopted. The Hindu Adoption & Maintenance Act 1956 provides for adoption of daughters also. But given a choice, how many people actually adopt daughters? Then, a Hindu man can adopt only a Hindu child. Not to talk of adoption, even if a Hindu marries a non-Hindu, which is permissible under the Special Marriage Act, the same Act obliges him to severe all his relations with his erstwhile joint family. He can take away his share and get lost. His Hindu family will have nothing to do with him thereafter. Wither Secularism!

 

Section 7 of the Hindu Adoption & Maintenance Act 1956 empowers a Hindu to adopt either a son or a daughter. However, the Hindu Minority & Guardianship Act1956 confers on him, natural guardianship only if he adopts a son. The law is mute on guardianship of an adopted daughter. Now, it must be an inadvertent omission, but it does reflect the society’s mindset. Then, it is totally incomprehensible as to why the lapse if involuntary, has not been corrected even after it’s being lucidly pointed out by the Law Commission as long back as in 1990.

 

Proceeding further, the Guardianship Act confers guardianship rights of a minor child exclusively on the father, during his lifetime. Only after his death, the mother can become a natural guardian. The most amusing provision of this Act is the one that makes the husband, a natural guardian of his minor wife. This is even if the husband is himself a minor. For records, it may be clarified here that in India, a marriage between two minors is perfectly valid notwithstanding the Child Marriage Restraint Act, which declares it a criminal offence. Criminality of the act is one thing and it’s legal validity, quite another! It is a legally recognized and approved criminal act. Approved, in more ways than one. To accommodate this, the Indian Penal Code bends backwards in its definition of Rape and gives a special concession in age of consent to exclude intercourse with a wife above fifteen years of age. It goes further and when wife is a child between twelve and fifteen , rape committed upon her by the husband is declared a minor offence punishable with a maximum term of two years. The Code of Criminal Procedure does the rest. Its schedule 1 declares the offence to be bailable more significantly, non cognizable. The police shall not act on the complaint and the poor child has to approach the court herself and go through the more rigorous procedure prescribed for a complaint case before even summons can be issued to the rapist. If she is unable to bear all this, well this was all a private affair between her father gave her away in marriage and her husband, who agreed to marry (rape) her. The state is not concerned.

 

Coming back to inheritance, we have evolved another clever notion of a Joint Hindu Family or the Hindu Undivided Family where the property is owned exclusively by males. The Hindu Succession Act expressly excludes this from its purview. Here, all rights in the property including the right to get it partitioned are conferred only on the male coparceners A son acquires a right in the coparcenary property the moment he is conceived. A daughter only acquires a potent threat of elimination. Even if she eventually takes birth she has no share in the property. The son is entitled to enjoy his share, to seek a partition, and even to bequeath his share by way of a will. Before the enactment of the Hindu Women’s Right to Property ACT,1937 women in a joint family were entitled to nothing except maintenance. Even this Act gave them limited rights over property and full ownership was still denied.

On her death or remarriage, the property would revert to the male heirs.

 

In 1941, the Rao-Hindu Laws Committee was constituted to prepare a Hindu Code Bill, which submitted it’s report in 1944. In 1948, shortly after independence, the bill with some amendments was handed over to a high-powered commission headed by the then Law Minister, Bhim Rao Ambedkar. During the debate, the bill created a stir. The national leaders voiced their apprehension that if enacted, it would destroy the basic structure of the Hindu society. The mighty patriarchal citadel was feared to come crashing down any moment The President Dr Rajendra Prasad even wrote to the Prime Minister that he would evaluate the new law on its merits before according his assent even if it came to be passed by the Parliament. This meant that he could withhold his assent if he didn’t like its provisions. The real faces of leaders like Sardar Patel, and Shyama Prasad Mukerjee were also exposed during the debate. Mukerjee even advocated leaving it to the choice of individuals to agree or not to agree to bind themselves to the bill. Even the All India Women’s Conference wholeheartedly opposed the bill. Under multidimensional pressures and because of the attitude of the Hindu hardliners, Nehru had to withdraw the bill. Feeling disillusioned, Ambedkar resigned in protest. It was much later in 1956 that Hindu law could be codified by way of four enactments viz. Hindu Marriage Act, Hindu Adoption & Maintenance Act, Hindu Succession Act and Hindu Guardians & Wards act. However these Acts have such halfhearted and intercontradictory provisions that the woman is left high & dry; without any real rights or entitlements.

 

Before 1956, the daughters had absolutely no right in the joint family property. The Hindu Succession Act 1956 however, made a benevolent provision though only by way of an exception, that if a Hindu having a share in the joint family property dies leaving behind female heirs also (ie.widow, mother or daughters etc), they shall also be entitled to succeed to his share. To give effect to this, a concept of a notional partition has been introduced. The property is presumed to have been partitioned just before the death of the person concerned. His share is then further partitioned among all his heirs, including the female heirs. However, if the property is a dwelling house, his widow, unmarried or divorced or widowed daughters can at the most, live in the house and cannot ask for a partition. Married daughters have no right even of residence. The privilege of getting the property partitioned still belongs exclusively to the male heirs. The daughters can have an ethereal satisfaction of having a share but can never ask for it even if one of the brothers survives them.

 

This provision regarding notional partition of the joint family property along with the one that recognizes equal share for daughters in the self-earned property of the father have been eulogized by women’s sympathizers as egalitarian and pieces of reformist legislation and strongly resented by the orthodox lords of the feudal Hindu society. However, so far as the women are concerned, both in actual working turn out to be instruments of fraud in the hands of patriarchy. The latter as already pointed out above, can easily be circumvented by making a will(which shall be in favour of the sons keeping in tune with the religious dictats and societal norms which have reined for three thousand years.) or by merging the self acquired property with the joint family property. As regards the former, one may not get fooled into thinking that all sons and daughters will receive equal shares in the joint family property. It is only the notional share of the deceased that is partitioned amongst all heirs. Here lies the catch. The remaining property shall still devolve by survivorship exclusively on the male members of the family

 

To illustrate, let us consider that a man dies leaving behind three sons and two daughters. Now it is not that joint property shall be divided by five and each son and daughter will have a 20% share. The property shall be first presumed to have been partitioned (amongst the male members only) just before his death. Thus he and his sons get 25% each. Now his share of 25% will be further partitioned into five shares of 5% each amongst the three sons and two daughters. So each son gets 30% and each daughter gets only 5%. Had there been only one daughter, the sons would get 31.25%each. If there were four sons and a daughter, she would get only 4% and 96%would be distributed among the sons. Lesser the number of sisters, more advantageous it is to the brothers. This is the way success-son operates among Hindus. The sons get 30%and the daughters only 5%. Even this 5% shall be denied to her if the deceased had made a will in respect thereof.

 

Continuing the above story, if the daughters are unmarried the brothers will get their meager share also registered in their own names. Emotional blackmail, threats and even physical beatings are weapons that come handy. Even if it comes to the extreme, buying freedom from all responsibilities of education, and marriage of the sisters against a paltry 5% share is not such a bad idea. If the sisters are married, they will not usually dare to ruin their relations with their brothers for 5% share. Consequently, Hindu families are characterized by names like *& sons and * & bros.

 

The tradition that has survived for thousands of years cannot be threatened by sporadic squeaks of enacting a Uniform Civil Code contained in the election manifestoes of some political parties. Who will dare to challenge the economic monopoly of males? So long as the absolute right to bequeath property by way of will is there, the Succession Act will remain worthless and meaningless. The father may partition the property during his lifetime and may not keep a share for himself. What will the female heirs inherit? Or he may merge the self-acquired property with the joint family property. There is no legal bar. The fact of the matter is that inheritance by a female heir is a rare mishap. Otherwise, no effort is spared by the society and the law to keep her deprived of her rights.

 

One may find some property registered in the names of some women belonging to the upper and the middle class. However, most of it is Benami. This is done to dishonestly evade Income tax, Property tax, Gift tax etc or to whiten black money obtained by corruption and other unscrupulous means. In such families even infants would be shown as paying Income tax. All this is however, controlled and managed exclusively by men.

 

The question of succession to the property of a Hindu will arise only in case he dies without making a will and without merging the same with the joint family property. Those who own property however do make a will during their lifetime. The property is usually bequeathed in favour of sons only. Giving it to the daughters would mean that the family would be entangled in legal battles for years. The sons are not likely to accept it gracefully. Leaving the property for the widow would sow the seeds of dispute between the mother and the sons. Wise mothers would themselves give it to the sons because they are the Shravan Kumars who will take care of her in her old age. No points for guessing what they would do otherwise. Horrendous tales of false criminal charges protracted legal battles and even gory murders and coercive suicides are routine news items.

 

On dying intestate, a person’s property (self acquired) shall be inherited by his male and female heirs in equal shares. Or, so the Hindu Succession Act declares. Here, the property does not include Agricultural Land, which is governed by different statutes in different states. Let’s leave that for a little later. Coming back to inheritance of other self-acquired property, the male heirs usually employ the same devices i.e. persuasions, threats, litigation, physical assaults…etc. (in that order) to get the female heirs relinquish their respective shares. A woman has no right in this property during the lifetime of her predecessor. She has to wait for her father, husband or son to die. Even thereafter, what, when and how (if at all), she will get some share is difficult to predict. Were the widows actually to get something, they would not have been begging, taking to prostitution or dying in pitiable conditions in Ashrams

 

A widow of a predeceased son or a grandson does not get any share if she has remarried before the succession opens. If she hasn’t, she is entitled to a share. But what does she practically get? It is a hazardous proposition in as much as she may remarry after that. The property would go into another family. To avoid this, the Hindu community invented yet another technique which being legally recognized by Manu and Kautilya has grown into a custom. The widow is remarried to one of her brothers-in-law. This is called Kareva and does not enjoy the status of a valid marriage. The brother-in-law protectively (?) and ceremoniously throws upon the widow, a sheet of cloth (Ek Chadar Maili Si) and she starts cohabiting with him. The property remains within the family and merges again with the joint family property. No question of her asking for her share.

 

If the widow is issueless, she can be easily kicked out. She may go to her parent’s place or to the ashrams meant for widows at Varanasi or Haridwar or Brindiban. Earlier, she was even burnt alive on her husband’s funeral pyre. These days, it is a bit difficult. Not too long back, there was a lot of hue and cry over Roop Kanwar’s act of Sati. The Government had to invoke the Sati Abolition Act, Presidential ordinances and what not? That none of the persons involved has been punished is another matter. They have all been acquitted and are freely roaming about glorifying the act. But it does raise eyebrows now.

 

The share of a mother in her deceased son’s property, though it appears beneficial to some women (Mothers), is actually used to further reduce the widow’s share. The mother is in any case, entitled to a share in her husband’s property after his death. If her due share is given to her, she may not need to inherit from her deceased son. The mother especially if a widow, becomes the Head of the family and though herself a female, carries out the deeply ingrained traditions of patriarchy. A glaring and well-known example of this is the case of succession to Sanjay Gandhi’s property. Mrs. Indira Gandhi claimed her one-third share and then relinquished it in favour of Sanjay’s son, Froze Varun Gandhi. Thus the patriarchal successor received two-thirds share and the widow Mrs. Menaka Gandhi received only one-third. It is absolutely necessary to control and regulate the widow’s share. If she remarries, the son who is the actual heir of the family may be left high and dry. He is not entitled to any share in his stepfather’s property also. The point however is that he is acknowledged more as a heir of the family than as his mother’s son.

Section 25 of the Hindu Succession Act disqualifies a person who has committed or abetted the commission of murder from inheriting the property of the person murdered or any other property in furtherance of succession to which he has committed or abetted the murder. However, in cases of Dowry deaths, the husbands who committed the ghastly acts of burning their wives alive after dousing them with kerosene are now owners of their Stridhan and other property. Sudha Goel, Shashi Bala and Shalini Malhotra are only a few names. In fact, swallowing the Stridhan of the wife and then, marrying again with fresh dowry has been the chief motive in many such cases. If the woman dies issueless, her husband is the sole heir to her property in the top-preferred category. Even if he is disqualified being the murderer of his wife, the property goes to his heirs. This means that the property of a married woman shall anyway remain within the family of the husband. He will eventually be awarded with an acquittal- either a clean one or at worst, with a benefit of doubt. Even in the rare case of conviction, he will at the most get a life term which gets commuted after fourteen years.(There has not been a single Death sentence in such cases).He comes back with a bang with the wife’s property waiting for him. Thus the law itself has systematically designed retention of property within the patriarchal fold. Not only can a man prevent his property from slipping away into his wife’s hands, he also has tailor-made provisions of law waiting to be pressed into service, allowing him to usurp his wife’s property after killing her or compelling her to commit suicide. The system is invincible and cannot be threatened by mute demonstrations and senile crusades of the women’s rights activists.

 

In her own lifetime, a woman has to strive for decades to get her own stridhan (usually her clothes, jwellery, and goods and other chattels). A landmark Supreme Court judgment on the point is Pratibha Rani v. Suraj Kumar (1985). Pratibha Rani had to run around helplessly for a decade before the Supreme Court came to her rescue. The court had to express its anguish in the following words:

 

Sometimes the law, which is meant to impart justice and fairplay to the citizens or people of the country is so torn and twisted by a morbid interpretative process that instead of giving haven to the disappointed and dejected litigants, it negates their well-established rights in law. The present case reveals the sad story of a married woman who, having been turned out by her husband without returning her ornaments, money and clothes despite repeated demands, and dishonestly misappropriating the same, seems to have got some relief from the court of first instance. But to her utter dismay and disappointment, when she moved the High Court, she was forced like a dumb-driven cattle to seek the dilatory remedy of a civil suit. Such was the strange and harsh approach of the High Court, with due respect, that it seems to have shed all norms of justice and fairplay. Even so, the High Court is not much to be blamed because in the process of following precedents and decisions of doubtful validity of some courts, it tried to follow suit  - - -.

 

The court authoritatively ruled against the notion that Stridhan was a property jointly owned by the husband and the wife. It was held that Stridhan belonged exclusively to the wife, though because of cohabitation, she may not be expected to keep it under her separate lock and key. In case it is misappropriated by the husband or is not returned on demand, he is liable to be prosecuted for a Criminal Breach of Trust. It would be interesting to note here that an implication of what the High Court had ruled was that a married Hindu woman was totally debarred from holding any property exclusively.

 

While talking of Stridhan, dowry, dowry-killings and inheritance, let us take note of another statutory provision that applies equally to women of all sects and classes. Sec.6 of the Dowry Prohibition Act 1961 specifically declares that dowry received in connection of the marriage of a woman is exclusively for her benefit and of her heirs. Any other person who might be holding it has to return it to her within three months. Failure to comply with the provision is declared a criminal offence and may invite a jail term from six months to two years and fine between five thousand to ten thousand rupees. A proviso has been added with effect from 19-11-86 that if a woman dies otherwise than of natural causes within seven years of her marriage, her property (stridhan and dowry only) shall be transferred to her children and if she has no children, to her parents. The husband is excluded. But not his children. If there are no children, her parents who had given the dowry are entitled to it. They can file a petition in the court of a competent Magistrate. However, they will have to endure years of tormenting litigation and will first have to prove the husband guilty of non-transfer to their daughter in the time envisaged in the first part of the provision. Let’s not forget, this is a special provision and applies only when the woman has died within seven years of marriage and due to unnatural causes. In other cases the Succession Act applies and as already pointed out earlier, the property goes to the heirs of the husband. Even within its limited scope, the provision is seldom invoked. The hapless parents, who have lost their daughter to the savage custom of Dowry, naturally divert all their attention and energy towards getting the murderer punished. The property aspect for which separate proceedings need to be initiated, remains ignored.

 

In a case where the husband dies first, widow is often harassed, tortured, and compelled to remain at her parent’s house so as to exclude her interference in his property and the joint family property. In case of a joint family, only if the widow has a son, she can demand a partition through him and ask for her share along with his. Till the partition is affected, she can apply to a civil court for injunction against any intended sale, alienation or transfer of the property by her in-laws. This usually works. In the face of the inevitable, the in-laws come out with some proposals for mutual settlement. However, the snail’s pace of the machinery of law, high costs of litigation and her own socially insecure position in most cases, compel her either to keep quiet or to agree to unjust terms.

 

Just like the Hindu law, the Indian Succession Act1925, applicable to Christians, Parsees and other religions and sects also does not restrict a person’s power to bequeath his entire property by way of a will. The reservations expressed on this count during the debate over this bill were lightly brushed aside by the then Law Minister. In his opinion, no father would use it to deprive his daughters and even if he does so, he would make at least some provision for them. Wishful thinking!

 

Succession laws applicable to Muslims, Christians and Pareses are no less discriminatory. Muslims cannot will away more than one-third of their property. However, the share of a female heir is only half of that of a male heir. Christians and Parsees and other women who have married under the Special Marriage Act 1954 are not subjected to this invidious treatment. But then in their case too, there is no restriction on transferring the entire self-earned property by way of a will. This will deprive a Muslim woman marrying under the Special Marriage Act of the little protection she was entitled to under her personal laws. However, if there be no will, she will get a larger share here than under the personal law.

 

Waves of social awakening and gender-equality have still not touched the personal laws applicable to women in Kerala, Goa, Pondicherry and the Parsee women. They are still not entitled to equal shares with their male counterparts. Manu’s code still pulls the reins of the Goan women; even much after the Hindu women have liberated themselves from it.

 

Lastly, about agricultural land which has been left outside the purview of the succession laws. Different states have framed their own laws to confer all rights in land by whatever name called (Bhumidari, Sardari, Asami etc.) exclusively on men. In some states, succession to agricultural land is still governed by customary law wherein women are totally deprived of all rights. Only land reforms in Kerala and West Bengal are exceptions.

 

The state laws dealing with ownership lease or licensing of land, confer the right of inheritance primarily on male heirs. Only in case there is no male heir, the widows get some rights. Unmarried daughters seldom have a chance to assert their rights. Married daughters and sisters are however, not included in any category. States of Punjab, Haryana, Uttar Pradesh, Himachal Pradesh and Delhi have placed further restrictions on enjoyment of property inherited by the widows. On their death or remarriage, the property reverts to the male heirs. In Rajasthan and Madhya Pradesh succession to Pattedari rights in land is governed by customary law.

 

Similar provisions are the hallmarks of the Land Reform Acts legislated by the states. The whole effort is to keep the management and control of land in the hands of men. One reason usually propounded for denying a share to the married daughters is that it would lead to fragmentation of the property. But then, doesn’t the same thing happen when the male heirs get it partitioned? Another contention put forth is that the daughters are given dowry in marriage in lieu of their share. Now don’t we all know who exactly benefits from dowry? It is a family-to-family transaction. What does the daughter get for herself? Not all marriages (God forbid!) reach a point where the wife resorts to legal proceedings and consequently, after years of excruciating litigation, can hope of getting her Stridhan back. In the usual they-remained-happily-married-thereafter marriages, the wife seldom has free access to and never, the freedom to spend-as-she-wishes the Stridhan.

The fact remains that a daughter has no rights either in her father’s family or in her husband’s. Her recognition lies only in her ability to produce sons who shall be the ultimate heirs.

 

Laws relating to Land Ceiling and Consolidation include only the husband, wife, minor sons and unmarried daughters in the definition of a Family. An adult son is considered a separate unit and is entitled to retain land separately, but not an adult daughter. Only the state of Kerela is an exception in this matter where there is no such discrimination. These invidious laws cannot be challenged on ground of gender-discrimination as they are under the protective shield of the Ninth Schedule to the Constitution. By the very first amendment in 1951, Art.31B was added to the Constitution by virtue of which, all laws enumerated in the Ninth Schedule have been provided total immunity from challenge on grounds of violation of Fundamental Rights.

 

The Uttar Pradesh Zamindari Abolition & Land Reforms Act 1950 was challenged on the ground of gender-discrimination. The petition was dismissed by none other than the most vociferous champion of women’s rights, Mr. Justice Krishna Iyer. Curiously, it was held that a married woman was socially recognized only through her husband. She didn’t need to be given any part of land from her father’s holding. This being the law applicable to the whole of India by virtue of Art.141 of the Constitution, how can a woman ever have her own fields?

 

This completes the majestic image of the Indian legislative elephant. Its egalitarian ivory-tusks are merely ornamental. The actual grinding is done by concealed orthodox teeth, still driven by the Patriarchal rationality. The important seats of power in a family especially, all decision making centers are exclusively manned by men. Property is still concentrated in the hands of men. Its actual devolution on women members of the family depends upon the whims of those sitting at the power-centers, the legal declaration of their entitlement notwithstanding.

 

The sacrosanct institutions of Marriage and Joint Family are beginning to show cracks despite the national and international efforts to preserve them. A growing number of single women and unwed mothers in the society and divorce suits in courts are some indications that these dilapidated structures may soon crumble under their own weight. This is a slow but sure reaction to thousands of years of marital rape, harassment and exploitation. The process has begun and appears to be irreversible. Bravo Lady! But just watch out; Manu’s degenerating citadel of patriarchy now has the modern laws of inheritance to guard its boundary walls. Anybody climbing over shall be stripped of all property rights, whether brought initially from outside, or gained by virtue of stay within its boundary.     

 

So long as the devolution of property remains a male-to-male transaction, equality, emancipation, independence, justice, respect, identity and dignity will remain hollow words for women. And, Patriarchy is not likely to concede the demand of equal division of property. That would be acting as its own official liquidator. All that the clangorous crusades of Human rights and Egalitarianism are likely to yield is some concessions here and there or at the most, hollow declarations of rights without any choice of enforcing them. Higher social objectives like preservation of a family or avoidance of fragmentation of land can always be pressed into service to justify the discrimination. After all, Equality can be envisaged only amongst Equals.    

 

                   

 

 

 

 

 

 

                   

 

 

                             

 

 

 

 

 

 

 

 

 

 

 

 


Source : ARVIND JAIN,ARVIND JAIN



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1 Comments for this Article



gspal

gspal

Wrote on 10 January 2013

Very well written on the double faces of Indian society












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