Author Name:   Anshumaan

This Article talks about the pious obligation of daughters after the amendment of 2005 in the Hindu Succession Act

Pious obligation of Daughters the Modern Perspective

Feminist movements have questioned ‘male-stream’ thinking in ways that have struck at discriminatory status quo in politics, society as well as the economic sphere. This project is connected with the legal dimensions of the changes in the economic sphere of those changes and specifically in the area of women’s property rights. Such changes have not been easy and have included debates that have challenged the very basis of feminism itself. The ‘gender equality v. gender difference’ or ‘formal equality v. substantive equality’ debates in feminist theory are examples of contentious issues that have struck at the attempts of the law to change the legal status of women. For example, would merely giving daughters the same coparcenary rights as her brothers take into account that at some level the needs of men and women may be different, as the ‘difference’ side believes? Or would giving a widow the same quantum of coparcenary property as her sons (formal equality) make her life any better than in the past (substantive equality)?

The constitution of India some argue provides a comprehensive framework for providing for legislation that can bring tangible improvements in the status of women. However it has been argued that the interpretation of the constitution by the higher courts have vastly reduced its efficacy by giving undue importance to so-called ‘religious personal laws’ which in the guise of protecting religious minorities allows for judicially acknowledged discrimination of women. A ‘secular constitution’ in a ‘religious society’ has not been able to rise to the challenges that a dominant male hegemony has attempted to create by purporting to protect a higher value -‘religion’. Consequently an issue that is directed at reform of laws that discriminate against gains political currency and becomes too emotive to touch, let alone reform. The Uniform Civil Code which despite being mandated by the constitution is unlikely to get fructified, at least in the near future, on account of such politicization.

The judiciary has not been able to innovate in the face of such hurdles for women’s rights. For example, in an interpretation of the ‘Equal Protection Clause’ of the constitution the difficulty may be visible. The Supreme Court of the US will sometimes review discriminatory systems on the basis of ‘active review’ (and hold the systems unconstitutional by looking at their ‘substance’ not their purported object) in the cases of vital matters of civil rights such as women’s rights. In India however, the paradigm of reviewing discriminatory systems is termed ‘restrained review’ which assesses levels of formal equality (as opposed to a requirement of substantive equality) thereby allowing several discriminatory systems to get through judicial review.

Now to turn to the evolution of women’s property rights before the Hindu Woman’s Right to Property Act, 1937. The concept of stridhan or ‘women’s property’ originated in the vedic age and undergone significant variation in various commentaries and after adjudication by British courts. In general the stridhana of a woman denotes a species of property over which she has absolute control; and she forms the stock of descent in respect to such property. In other words such property devolves on her heirs, although th variations between different schools of Hindu Law may not always provide for this.

The British courts recognized three types of stridhan the first being ‘gifts from kindred’ that is from male relatives of her natal family. The second type consists of ‘property acquired in lieu of maintenance’ and the third type consists of ‘property acquired by adverse possession’. The share of a woman on partition is not stridhana and she would not be its absolute owner.

The second type of women’s property is that where she has limited or qualified interest and such property got fructified in the Hindu Women’s Right to Property Act, 1937 (discussed below). Such ‘women’s estate had the primary feature of only providing for limited power of disposal (usually only for legal necessity). Also such estate was only for the benefit of the widow in her lifetime and reverted to the heirs of the last full owner.

Thus this historical background allows for a full fledged discussion of the ‘coparcenary rights’ of women right from the Hindu Women’s Right to Property Act, 1937 right down to the recommendations of the Law Commission in 2000.

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.

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.

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.

and on its Fundamentals
As 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. 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.

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. 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.

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
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?

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.

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.

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 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.

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.

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. In Savita Samvedi v. Union of India restrictions was placed on the right of a railway employee to nominate a married daughter for certain benefits that the railway was giving to its employees. A married daughter under the railway rules was eligible only if there was no son or the son was not in a position to take care of his parents. The court held that this distinction was unconstitutional because it suffered from the twin vices of gender discrimination between sons/daughters as well as between daughters inter se (on the ground of marriage). 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.

The history of pious obligation of daughter can be laid back to 1924 when the Privy Council first heard the case of such type of obligation of daughters towards their deceased father. In the case of Pondicherry Kokilambal vs Pondicherry Sundarammal And Ors. on 25/7/1924 it was observed by the Privy Council:

“The entire law of the joint family, including right by birth,' has to be applied, the only difference being that daughters took the place of sons and are entitled to such rights, as the sons would have in a joint family. If this view is correct the position will be that the plaintiff would have all the rights and liabilities of sons in a joint family. If you corcede the right by birth, and apply the law of the ordinary Mitakshara joint family, you must also concede pious obligation of the daughter to discharge her mother's debts”.

From the cases reported in Chalakonda Alasani v. Chalakonda Ratnachalam, Kamakshi v. Nagarathnam, Boologam v. Swornam, Venku v. Mahalinga and Muttukannu v. Poramasami, that there can be a co parcenary of dancing girls, with rights of survivorship. There is however no case which goes to the length of saying that daughters of dancing girls acquire by birth an interest in the ancestral property; but Mr. Guruswami Chetty contends that once you grant a co-parcenary, right by birth is a necessary corollary and that there can be no co-parcenary without-right by birth acquired by co-paroeners Mr. Radhakrishnayya relies upon Niras Purbe v. Tetri Pasin and Sant Singh v. Lachhmi to show that in such cases you have to apply the law of usage and that the daughters inherit the property absolutely as stridhanam.

In another case of 1984 Income-Tax Officer vs K. Krishnamachari on 18/8/1984 it was held that the daughters have no pious obligation to repay the debt of her father. In this case the deceased, A. Radhakrishnamurthy, died leaving behind two daughters, some properties as well as debts. Admittedly, he died intestate. Immediately after his death, his daughters being his Class I heirs inherited his properties with the obligation to discharge the debts due from him. Unlike in the case of the sons, the daughters have no pious obligation to pay the debts of their father. The necessary corollary of this position is that the daughters would be liable to discharge the debts of the father only to the extent of the value of the assets inherited by them through their father. There is no question of any executor administering the estate of the deceased. The question of an executor administering the estate of deceased person would arise only if such an executor was appointed by the terms of a will left behind by the deceased by which the testator ordained the executor to take over his properties, administer them and to discharge the debts due from him.

As per the Section 6 of the Hindu Succession Act, 1956, after the amendment the daughters shall have the same rights and liabilities as if she would have been a son. Therefore, the pious obligation has been deleted after the amendment Act of 2005 but the liability to pay the debt of the deceased father will be the same upon daughters as they would be on sons before the commencement of the 2005 amendment Act, therefore the rights of the creditors will be preserved if the debt was taken before the commencement of this amendment.

But at the same time now the creditors cannot move against any heirs of the deceased father if the father died without paying back the debts of the creditors. But if however such heir has expressly to bind himself to fulfill the obligation, the provision will become redundant and inoperative. Since the commencement of this amendment the creditors rights are preserved against any heir born after the said Act was passed.

If the daughter expressly agrees to give back the debt of her father then she can do it as per the guidelines under the amended section 6 of Hindu Succession Act.

# AIR 1962 SC 723 c.f. Sivaramayya, B., “Coparcenary Rights to Daughters: Constitutional and Interpretative Issues”, (1997) 3 SCC (J) 25
# AIR 1977 Pat. 185
# AIR 1989 Kar. 120
# AIR 1989 Kar. 120
# AIR 1925 Mad 902
# 2 M.H.C. 56
# 5 M.H.C. 161
# (1882) 4 Mad. 330
# (1888) 11 Mad. 393
# (1889) 12 Mad. 214
# [1916] 20 C.W.N. 103
# [1918] 126 P.W.R. 1918
# 1985 11 ITD 194 Hyd
# ibid
# MULLA HINDU LAW, Satajeet A. Desai, Lexis Nexis Butterworths Wadhwa Nagpur, 21st Edition, pg 1100.

The  author can be reached at: anshumaancnlu@legalserviceindia.com

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