Author Name:   rahulshrivastava

In the light of judgment in the matter of: B.Chandrashekhar Reddy V. State of Andhra Pradesh AIR 2003 SC 2322....

Coparcenary Rights of Major Unmarried Hindu Daughters

The United Nation's Report in 1980 presented that:
"Women constitute half the world's population, perform nearly two-thirds of its hours, receive one-tenth of the world's income and less than one hundredth of the property."[1]

India is a multi-linguistic, multi-cultural and multi-religious state of more than a billion people, of which almost half comprise females. The principles of fairness and equity are enshrined in the Constitution of India, that unequivocally mandates gender equality. Discrimination and violence against women do not just victimize the individual women, but do indeed hold back whole sections of society. Guaranteeing rights to women is an investment in making the whole nation stronger and self-reliant.[2]

In India, it is particularly the Personal law that principally governs the lives of women, though to many, the exact dimension and how it controls the lives of each one of us may not be very clear. Simply stated, Personal law is the set of rules which govern the behavior of individuals vis a vis their family i.e. spouse, parents, children etc. As often seen, law by itself is no deterrent against crime. In fact it is the attitude of society in general and the individual in particular that determines the effectiveness of any legal system. Thus, laws are nothing but codified social behaviour, so in order to make the law effective there is equally a back-up requirement for social education and social transformation.

It has been widely observed that the rights that women have under personal law are often usurped. Though the law provides for a judicial procedure to enforce the law by way of courts as well as the penalty for violating the law, women being socially and economically subservient are either unaware or unable to enforce these legal rights through courts. Most common people are apprehensive and reluctant to approach the court because the language of the law is difficult and the procedure often extremely complicated, for example, if two people are faced with the same legal problem, depending on where they reside, their religion etc., the court of jurisdiction and remedy available to them may be different.[3]

The Approach of the Southern Amendments It will be noticed that reform in the area of property rights for women and daughters in particular follow two broad approaches. The first being a reformation of the personal law as it stands i.e. reform the hitherto discriminatory law that devolve property upon males by virtue of birth and give women similar rights. This approach is liable to the general criticism that it purports to retain customary-personal laws but tamper with their fundamental principles, which is primarily directed towards giving only males property rights. The second approach is more direct, removing all customary-personal laws, which are inherently discriminatory against women on the ground that they cannot fruitfully be reformed. Both approaches have been attempted in India with varied results and consequences for the rights of women.

The second more direct approach was attempted in Kerala in 1976 with the Kerala Joint Family System (Abolition) Act, 1976 which followed the broad recommendations of the Hindu Law Committee (Rau Committee) and abolished the right of birth under both Mitakshara and Marumakattayam Law. The Act itself creates consequences that have proved to have both positive and negative consequences for the rights of women. [4]

Firstly, the Act has operation only in Kerala where the existence of matrilineal succession systems such the Marumakattayam Law also got abolished. While in general ‘right by birth’ as a principle has been discriminatory against women, in Kerala for instance this may not have been the case and the legislation adversely affected women who were benefiting by a ‘right by birth’ principle in favor of women. Secondly, the Act is prospective in nature, abolishing devolution of property by birth, after its enactment, thereby not benefiting women who were previously denied property on account of this principle. Thirdly, the Act lays down that members of the Mitakshara coparcenary will hold the ancestral property as tenants-in-common the Act comes into operation as if a partition had taken place and each of them holding it separately. The property rights of women may be defeated if the male coparceners dispose the property by testament or by alienation and the act makes no effort to prevent such a manner of defeating the property rights of the woman. Fourthly, the Act does not confer any rights to daughters in existing coparcenary properties. [5]

The second approach of reform was attempted by the Andhra Pradesh legislature in 1985 where it attempted to reform the customary Hindu Law by making the Daughter a coparcener and giving her the same rights as other (previously only male) coparceners. The Andhra Model has been replicated in Tamil Nadu, Karnataka & Maharashtra. This model will be examined in greater detail below.

The Pith and Substance of the Andhra Model
Under S.29-A[6] of the Andhra Act[7] the Daughter becomes a ‘coparcener by birth’ and has all the rights and liabilities as male coparceners i.e. the devolution of coparcenary property to the daughter would be in the same manner as to the sons. S.29-B provides that coparcenary property would devolve by survivorship on the daughters.[8] The effect of S.29-C is an example of the ‘special rights’ that would now accrue on the daughter, as she would now be entitled to the right of preemption in case of certain coparcenary property. Under the Act the ‘new rights and liabilities’ arise only if (a) a prior partition had not taken place (b) the daughter had not previously married[9] (c) daughter is a major[10]
Prima Facie it appears all seems well in terms of the technical and substantive aspects of the Andhra model, whether this early assumption is correct remains to be examined. The technical aspect will now be examined in this sub-section.

The State Acts that create the Andhra model are titled ‘Amendment’ to the ‘Hindu Succession Act, 1956’ i.e. it wishes to modify the law which is dealt with in the latter Act. Under S.4 (1)(a)-(b) of the HSA it is clear that the Act does not codify the entire the Hindu Law related to devolution of property but is the Code only to those areas where specific provisions have been made. The HSA does not deal with the intricacies devolution of coparcenary property at all (even S.6 HSA creates only an exception for devolution by survivorship in respect of interest in coparcenary of the intestate) and therefore devolution (by birth) of coparcenary property is covered by (uncodified) customary Hindu Law. Thus the Amendments give ‘survivorship rights’ to the daughter (with ‘succession rights’ already given by S.6 of the HSA) i.e. the Amendment purports to amend a part of the law that is not even dealt with in the Act itself.[11]

This fundamental error is carried further (either to tide over colorable nature of the amendment or because of pure error) in titling the material section of the Andhra, Tamil Nadu & Maharashtra as “Succession by Survivorship” which it is submitted is an oxymoron! In the scheme of the HSA ‘devolution of interest of the intestate in coparcenary’ is titled ‘succession’ (obstructed heritage) while ‘devolution of coparcenary property’ (as explained earlier, is in the domain of customary Hindu Law) is termed ‘survivorship’ (unobstructed heritage). This error while appearing hyper technical illustrates a conceptual confusion, which may not be overcome by simply changing the marginal heading of the section because of the fundamental conceptual flaws pointed out in the previous paragraphs.[12]

Effect on the Traditional Joint Family and on its FundamentalsAs explained earlier the Acts make the daughter a full coparcener and this makes her a member of her natal family and marriage to another family does not alter this position. In other words she is a member of two families, her natal family and her husband’s family-- a position of law hitherto unknown. The Supreme Court in the past has struck down definitions of ‘family’ that are artificial because they don’t exist in actual practice or because they violate fundamental rules of legal construction. In Kunhikoman v. State of Kerala a definition of family that included ‘husband, wife, unmarried children or such of them as they exist’ was struck down as unconstitutional and artificial as they did not exist in actual practice nor in any established system of law. It remains to be seen if such a modification to the meaning of the ‘family’ that the amendments have in fact been effected will be sustained, if challenged.

The woman as a karta within traditional Hindu law has not been accepted in practice nor in theories of Hindu Law. Such an exclusion is based on the logic that ‘only a coparcener can be a karta’ since women cannot be a coparcener they also cannot be a karta and such logic is supported by the opinion of the Supreme Court. The amendments however attempt to create exactly the contrary position making a daughter a karta and thereby technically allowing her to become a karta of the joint family.[13] As Prof. Sivaramayya has argued this fiction of law could lead to practical difficulties if a coparcener leaves a daughter from a first marriage and a wife and children from a second marriage. Potentially the first daughter could claim kartaship over the second wife’s family (as well as well as manage the affairs of their family) despite being a member of another family (after marriage)-practically a very difficult situation. [14]

The doctrine of pious obligation has posed difficulties in the context of codified law and more so in the context of women. It has been held that the ‘moral obligation’ to pay of the debts of deceased relatives that arises in the case of male coparceners does not apply to the widow.[15] In Keshav Nandan Sahay v. Bank of Bihar the court held that the sons were liable for pre-partition debts incurred by their deceased father with respect to some bank loans while the widow was not. The court felt that on partition between the coparcener and his sons the widow is allotted a share in her own right and not as a mere representative of her husband. This position of her differentiates her from her sons as regards their pious obligations.

In the High Court of Karnataka (where the new amendments operate) took the same view, albeit before the enactment of the amendments. In Padminibai v. Arvind Purandhar Murabatte the court felt that because a wife not being a person entitled to a share in the Mitakshara coparcenary by birth is not bound by the doctrine of pious obligation.

Now applying this reasoning of the Karnataka High Court to a post-amendment scenario-- will the daughter be liable for pious obligation? Following from the reasoning of the Karnataka High Court, the wife was excluded from pious obligation simply because she did not have a right by birth in the coparcenary. Therefore if a daughter acquires a share in the Mitakshara coparcenary by birth it must follow that she will now be liable.This will have to be adjudicated upon by the courts to achieve certainty in the matter.[16]

Other aspects of Mitakshara Law such as reunion also pose problems because firstly they are regulated by uncodified Hindu Law and secondly a reunion is only possible between father-sons, brothers, nephews-paternal uncles totally excluding women. Again as argued above, if the daughter (or sister or niece) becomes eligible to participate in reunion as coparceners then it will amount to tampering with uncodified law something, which the amendment to a partial code cannot effect.

Questionable Distinctions in the Amendments[17]
In S.29-A of the Andhra Act the daughter becomes a coparcener “by birth” therefore does this section apply to only natural born daughters or also to daughters by adoption? Should “birth” be strictly interpreted so as to exclude the latter? The second questionable distinction is found in S.29-A (iv) where the coparcenary rights are said to accrue only to daughters who remained unmarried at the time of enactment of the amendment. Should marital status be taken as a legitimate basis of classification that could exclude some daughters from the rights that the amendments create for other ‘classes’ of daughters?[18]

In Indian constitutional law, exceptions to the “Equality and Equal protection Clause (Art.14)” are analyzed with the Doctrine of Reasonable Classification. The doctrine which is a juristic tool allows for certain exceptions to a strict rule of equality if two conditions are satisfied namely (a) the classes created have been based on some intelligible differentia (b) the classification bears a rational nexus to the object of the classification.[19]

The distinction relating to “birth” will be considered first. It seems that there is an intelligible differentia between a ‘natural born’ and ‘adopted’ daughter with the reading of the section providing that “birth” might have to be strictly construed. However it is on the second condition of rational nexus that the distinction seems untenable. From the reading of the preamble to the Andhra Act it is clear that it was enacted because “…exclusion of the daughter from participation in coparcenary ownership by reason of her sex…” is contrary to Art.14 (equality clause) of the constitution. The emphasis seems to be directed at removing discrimination ‘by reason of sex’. Does differentiation by “birth” have a rational nexus with the object of the Act, which is removing discrimination on the basis of sex? It is humbly submitted that the answer is no. [20]

Further support for this argument can be drawn from S.12 of the Hindu Adoption and Maintenance Act, 1956 which severs for the adoptive child (from the date of adoption) all legal links with his natal family and associates him with only his adopted family. However Prof. Sivaramayya[21] disagrees arguing that the section does not intend to give coparcenary rights to an adoptive daughter because of the emphasis on “by birth”. Without going into the substance of his argument, it may be questioned on the count that one must not assume that the opinion of the legislature must in all cases be given effect if it results in some absurdity or clear injustice. Judicial review of a number legislative acts have proceeded on the ground of ensuring some higher values, either intended by the legislature (but not reflected in wording of the enactment itself) or contrary to the opinion of the legislature itself. [22]

The second questionable distinction arises with the use of marital status to exclude daughters married before the commencement of the Act from its operation. It has been argued the reason for this distinction might have been the sociological fact that dowry is given to the daughter at the time of marriage and this would constitute her share. This justification for the differentiation, it is submitted, would be against public policy especially when there are a number of legal prohibitions against the custom of dowry. [23]

While this distinction in the context of the amendment has not been adjudicated, in other fact situations, marital status as a ground for differentiation has been held unconstitutional. Thus the trend of the Apex court seems to go against accepting a differentiation where the ground is marital status. The opinion of the Supreme Court will reinforce the submission that ‘marital status’ as a ground of differentiation cannot have a rational nexus to the object of granting coparcenary rights to daughters in general.

A female Hindu’s[24] right to property is governed by the Hindu Succession Act, 1956
Prior to the enactment of the Hindu Succession Act, 1956 a female Hindu only had a right to maintenance from ancestral property and a widow had a limited estate which she was disentitled to part with. The amendment in the act has gone a long way to make the law far more egalitarian.

Now, as an heir a daughter is identically placed to a son as far as inheritance of ancestral property is concerned. [25]The only disability put on a female heir under Section 23 of the Hindu Succession Act is that a female heir cannot seek partition of the dwelling house till the male members choose to have such a partition even though if the female heir is single or widowed she has a right of residence and maintenance. [26]
However, there is a substantial difference in the right to succession of the property of a woman. While a man’s property devolves upon his children, wife and mother at the first instance and upon his extended family at the second, the property of a woman devolves upon her children at the first instance, her husband at the second and his relatives at the third. Only in the event that her husband does not have any family does any right accrue to the family of the women. The only exception to this rule is that her family inherits property, which devolves upon a woman from her family.

The Hindu Succession (Amendment ) Bill 2004 proposes to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. It is based on the recommendations of the Law Commission of India as contained in its 174th Report on “Property Rights of Women: Proposed Reform under the Hindu Law”.

The amendment which will have far reaching implications is the proposal to omit Section 23 so as to remove the disability on female heirs contained in that section. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein

The Response of the Judiciary
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[27] of the Constitution of India[28]. On the other hand, in a number of other cases the Supreme Court has tested personal laws on the touchstone of fundamental rights and read down the laws or interpreted them so as to make them consistent with fundamental rights. Though in these decisions the personal laws under challenge may not have been struck down, but the fact that the decisions were on merits go to show that though enactment of a uniform civil code may require legislative intervention but the discriminatory aspects of personal laws can definitely be challenged as being violative of the fundamental rights of women under Articles 14 and 15 and can be struck down.[29] In some earlier decision of the Patna High Court[30], subsequent;y reversed by a full bench of the same high court[31] and a decision of the Allahabad high court[32],the rule was made that any property acquired by a female hindu anytime before the commencement of this act is to be her absolute property.In fact in one case the Supreme Court has held that that personal laws, to the extent that they are in violation of the fundamental rights, are void[33]. In some judgments the Supreme Court has expressly recommended to the State to carry out its obligation under Article 44 of the Constitution and formulate a uniform civil code[34].

Another heartening trend is that the Indian courts are increasingly relying on international standards, derived from various international declarations and conventions[35]. Specifically CEDAW has been referred to and relied upon by the Supreme Court of India in some judgments[36]. These line of judgments give a firm basis for the women of India to demand gender justice and equal rights on par with international standards.

Apart from the ongoing struggle for a uniform civil code in accordance with the Constitutional

framework, today the India women are fighting for rights in marital property, denied uniformly to them across all religious boundaries. There is also a significant movement in some of the hill states, towards community ownership of land by women by creating group titles and promoting group production and management of land and natural resources by landless women for joint cultivation or related farm activity. Land rights would be linked directly to residence and working on land under this approach being lobbied for under the Beijing Platform for Action.

However, the challenges are many: social acceptance of women’s rights in property leads them. In a country where women continue to be property themselves the road ahead promises to be long and bumpy.

Conclusion
Empowerment of women, leading to an equal social status in society hinges, among other things, on their right to hold and inherit property. Several legal reforms have taken place since independence in India, including on equal share of daughters to property. Yet equal status remains illusive. Establishment of laws and bringing practices in conformity thereto is necessarily a long drawn out process. The government, the legislature, the judiciary, the media and civil society has to perform their roles, each in their own areas of competence and in a concerted manner for the process to be speedy and effective.

These amendments can empower women both economically and socially. and have far-reaching benefits for the family and society. Independent access to agricultural land can reduce a woman and her family's risk of poverty, improve her livelihood options, and enhance prospects of child survival, education and health. Women owning land or a house also face less risk of spousal violence. And land in women's names can increase productivity by improving credit and input access for numerous de facto female household heads.

Making all daughters coparceners like wise has far-reaching implications. It gives women birthrights in joint family property that cannot be willed away. Rights in coparcenary property and the dwelling house will also provide social protection to women facing spousal violence or marital breakdown, by giving them a potential shelter. Millions of women - as widows and daughters - and their families thus stand to gain by these amendments.
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ENDNOTES
[1] UNDP ‘Convention on equal right to women’,1998

2 Werner Menski, Hindu Law: Beyond Tradition and Modernity (Delhi: Oxford UP: 2003).

3 Ibid

4 Ranganath Misra, Mayne's Treatise on Hindu Law and Usage. 15th ed. (New Delhi: Bharat Law House, 2003).

5 Supra at note4

6 (i) In a joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a

coparcener in her own right in the same manner as a son had have the same rights in the coparcenery property

as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be

subject to the same liabilities and disabilities in respect thereto as the son

(ii) At a partition in such a Joint Hindu Family the coparcenery property shall be so divided as to allot to a

daughter the same share as is allotable to a son;

Provided that the share which a pre-deceased son or a (SIC) deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;

Provided further that the share allotable to the pre-deceased child or a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of such pre-deceased daughter as the case may be.

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) shall be held by her with the incidents of coparcenery ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the

Hindu Succession (A.P. Amendment) Act, 1989;

(v) nothing in Clause (ii) shall apply to a partition which had been effected before the date of the

commencement of the Hindu Succession (A.P. Amendment) Act, 1989."

7AP Act 13 0f 1986 w.e.f. 5.9.1985

8 S. Narayan Reddy v Sai Reddy AIR 1990 AP 263

9 B Chandrashekhar Reddy v State of Andhra Pradesh AIR 2003 SC 2322

10 G Valli v State of Andhra Pradesh AIR 2004 AP 174

11N.R. Raghavachariar, Hindu Law- Principles and Precedents, 12th Edition (Madras)

12Paras Diwan and Peeyushi Diwan, Modern Hindu Law. 10th ed. (Allahabad: Allahabad Law Agency, 1995)

13 Commr of Income Tax V Govindram Sugar Mills AIR 1966 SC 24. Also see Kanji v Parmanand AIR 1992 MP 208 and Mangal v Jayabai AIR 1994 Kant. 276

14 B.Sivaramayya, "Coparcenary Rights to Daughters; Constitutional and interpretational Issues," (1997) 3 SCC (J), P.25.

15 Supra at note11

16 Satyajeet A. Desai, Mulla's Principles of Hindu Law. 17th ed. 2 Vol. (New Delhi: Butterworths, 1998)

17 Ibid

18The position of women in Hindu law: Volume 2 - Page 386 by Dwarka Mittal

19 Commentary on the Constitution of India (Vols. 1 & 2 of a Set of 8 Vols.) 8th edition, 2007 by Durga Das Basu, revised by Justice Y.V.Chandrachud, Justice S.S.Subramani & Justice B.P.Banerjee

20 Supra at note8

21 Supra at note14

22 Mulla on ‘Principles of Hindu Law’ Twentieth edn. Vol. 1 By S.A. Desai

23 Ibid

24 Vidya Nand Ram (2001) 10 SCC 747; Dhanishta Kalita v Ramakanta AIR 2003 Gau 932

25Rambai Patil v Rukminibai Vekhande AIR 2003 SC 3109

26 Mulla on ‘Principles of Hindu Law’ Twentieth edn. Vol. II By S.A. Desai

27Pratap Singh v UOI AIR 1985 SC 1694

28Krishna Singh Vs. Mathura Ahir (AIR 1980 SC 707), Maharshi Avdhesh Vs. Union of India (1994 Supp (1) SCC 713),Ahmedabad Women Action Group & Ors. Vs. Union of India (1997 3 SCC 573), Pannalal Pitti Vs. State of A.P. (1996 2 SCC 498)

29Anil Kumar Mhasi Vs. Union of India (1994 5 SCC 704), Madhu Kishwar Vs. State of Bihar (1996 5 SCC 125), Githa Hariharan Vs. Reserve Bank of India (1999 2 SCC 228), Daniel Latifi Vs. Union of India (2001 7 SCC 740), N. Adithyan Vs. Travancore Devaswom Board & Ors. (2002 8 SCC 106), John Vallamattom Vs. Union of India (2003 6 SCC 611).

30RA Missir v Raghunath AIR 1957 Pat 480; Janki Kuer v Chharthu Prasad AIR 1957 Pat 674

31Harak Singh v Kailash Singh AIR 1958 Punj 581 (FB)

32Hanuman Prasad v Indrawati AIR 1958 All. 304

33Masilamani Mudaliar Vs. Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525)

34National Textile Mazdur Union Vs. P.R.Ramkrishnan (1983 1 SCC 224), Mohd. Ahmed Khan Vs. Shah Bano Begum (1985 2 SCC 556), Jordam Diengdeh Vs. S.S. Chopra (1985 3 SCC 62), Sarla Mudgal Vs. Union of India (1995 3 SCC 635), Lily Thomas Vs. Union of India (2000 6 SCC 224), John Vellamatham Vs. Union of India (2003 6 SCC 611)

35For instance: Jolly George Verghese & Anr. v. State Bank of India: AIR 1980 SC 470, Gramophone company of India Ltd. v. Birendra Bahadur Pandey & Ors.: AIR 1984 SC 667, People’s Union for Civil Liberties v. Union of India & Anr.: (1997) 3 SCC 433,

36Vishaka & Ors. v. State of Rajasthan & Ors.: AIR 1997 SC 3011, Gita Hariharan v. Reserve Bank of India: AIR 1999 SC 1149, C. Masilamani Mudaliar & Ors. v. The Idol of Sri Swaminathaswami: 1996 8 SCC 52

The  author can be reached at: rahulshrivastava@legalseviceindia.com

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