Daughters right to property and Hindu Succession

(amendment) Act2005: another blow in harmonious family

relations?

Is our society moving away from family bonds and attachment with the shift

from joint families to nuclear families? Is the concept of ‘family security’

becoming irrelevant with the society becoming more individualistic and

independent? Have our law makers used their authority to create one more

dent in time tested harmonious relations woven into the fabric of Hindu

families? The first dig at the relations began when daughters were made

coparceners in the family of their birth and the process of digging was

completed by the 2005 amendment to the Hindu Succession Act. It is an

attempt to bring about mathematical equality between brothers and sisters as

though equality in property is the only criteria by which to judge an

egalitarian society. Our lawmakers have conveniently forgotten to appreciate

the daughter’s role and status as a ‘wife vis a vis her husband’

I hope to make this point by perusing a comparison of property rights of a

woman under the Hindu Succession Act 1956(Principal Act) and the 2005

amendment; pros and cons of the 2005 amendment; why not place the wife

on an equal footing with her husband; and ponder over some suggestions for

the lawmakers to consider.

B. Property rights to women under Hindu Succession Act 1956(HSA)

Vis-a vis Hindu Succession (Amendment) Act 2005- a comparison

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Hindu Succession Act enacted in 1956 (which incorporates the Mitakshara

principle of propinquity i.e. preference of heirs according to the proximity of

relationship.) was commended by J.Duncan M.Derrett1 with his observation

that the law of Succession has been so comprehensively reformed that one

need not fear of dying intestate. In a sense, Parliament has made a WILL for

everyone in HSA. A person can die intestate with confidence that no close

relation will be left unprovided for, let alone destitute. The Parliament has

considered and set out in an order of priority, the relations that in most cases

are close to the deceased and whose claims have through the centuries been

recognized by law or in the wills of those classes which normally leave

wills. The predominantly patrilineal structure has been recognized but

considerably modified by the undeniable claims of close cognate relations.

This is not to say that law must remain static because it was praised at one

point of time. But laws have to be realistic. Life of law is not logic but

experience. In this case the logic of equality has been stretched to a breaking

point. Does the Act serve to promote the harmonious family relations or

does it ill-serve healthy family relations ?

Succession under 1956 Act Vs 2005 Act.

The chart will show that Derret was right. Women folk were given a fair

share in their paternal property. In addition their limited estate was

converted into an absolute estate(section 14)

Principal Act

I. separate property

12 heirs are specified in Class I who

Under 2005 amendment:

separate property

2 more heirs are added:

1 Introduction to Modern Hindu Law: Oxford University Press: 1963 at p. 365

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are preferential/simultaneous heirs.

They are:

mother, widow, son,

daughter,

daughter of the predeceased

daughter; son of the

predeceased daughter,

son of predeceased son,

daughter of predeceased

son ,daughter of the

predeceased son of

predeceased son, son of the

predeceased son of the

predeceased son,

widow of the predeceased

son, widow of the predeceased

son of the predeceased son.

Except the first 4 others take the

representative shares of their

deceased ancestor

note: 8 out of 12 are

female heirs and one is a

male heir claiming through

the daughter.

Upto grand-children of the

daughter; and great-grand

son of the predeceased

daughter of the

predeceased daughter;

daughter of the

predeceased daughter of

predeceased daughter

(ie. Upto great-grand children -of the

daughter and the son alike- are

preferential heirs)

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children of the son are

preferential heirs)

II. Mitakshara coparcenory

interest

Sons alone were

coparceners by birth

If the deceased left

behind female heirs specified in

Class I or male heirs claiming

through female heirs- property

devolves by testamentary or

intestate succession and not by

survivorship (proviso to secion6

of the HSA)

NOTE: facts show that in a large

majority of the cases, one or the

other female heir in Class I or male

claiming through female heir would

invariably be alive at the death of the

intestate. Therefore, the proviso is

larger than the rule which says that

Mitakshara interest devolves by

survivorship. Hence, in most of the

cases Coparcenory property also is

Mitakshara coparcenory interest

daughters are also made

coparceners by birth.

Same as before but with the

addition of 2 more heirs in

Class I(viz the great-grand

children of the daughter)

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available to class I heirs including

the daughters.

Daughters and sons have equal

shares in the man’s ‘notional’

share of undivided interest in

Coparcenory property.

In addition, son takes the share

independently as coparcener

by birth.

Eg Father dies- leaves son +

daughter. Father’s notional share is

½; and son has ½ share by birth.

After father’s death- his ½ share to

be divided between the son and

daughter

son takes= ½ + ¼

daughter = ¼

III. Agricultural land-

It was governed by the State tenurial

laws and only where the State laws

were silent, HSA applied.

Same as before

Daughter also takes a share

independently by birth. She

takes the liabilities also on par

with the son. By implication,

she takes the rights and duties

of a karta also.

In the Same Eg daughter also has

1/3 share by birth. After father’s

death- his 1/3rd share is divided

between the son and the daughter.

Now son and daughter take- 1/3

(own share) + 1/6

( from father’s share)

Agricultural land-

It is now subject to the succession

under the amendment and females

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IV. Dwelling house (sec 23)

A female heir cannot

claim partition of the dwelling

house wholly occupied by

members of the family of the

deceased until the male heirs

choose to divide their shares

Unmarried daughter has a

right of residence. But married

daughter has a right of residence

only if widowed, separated or

deserted.

NOTE: it was a fair provision and

alive to real life contingencies

V. Widows remarrying

Widow of the predeceased son,

widow of the predeceased son of

the predeceased son and the widow

of the brother are not entitled to

inherit if she has remarried on the

date the succession opens.

NOTE: the property already

inherited is not divested if she

marries after the death of the

deceased because law does not

favour divesting of the property

have a share in it..

Dwelling house

Section 23 deleted. Daughters-

both married and unmarried

have the same right to reside

in and claim partition of the

parental dwelling house. The

right is not circumscribed by

any conditions or

contingencies as before.

Widows remarrying

They can inherit even if they have

remarried. (i.e. even after

establishing a new matrimonial

union in a another family- may be

a total stranger family- she has a

share in her former father in

law /grand father in law’s

property .!!!

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once vested.

The net result of Hindu Succession Act and the other laws is that:

the liability of the parents towards daughter extends well beyond her

marriage. The daughter and in her absence- her children, her grand-

children and great grand children- are entitled to a share in the

separate and Coparcenory property of her father. They are entitled to a

share in the agricultural lands; the daughters- both married and

unmarried are entitled to ask for a partition, right of residence in the

dwelling house occupied by her brothers even when the brothers are

living jointly and without any contingencies like widowhood,divorce

etc.

Under the Hindu Adoption and Maintenance Act- the parents are

primarily liable to maintain the unmarried daughter until minority and

beyond minority – to the extent she is unable to maintain out of her

own earnings. Maintenance under the Act includes food, clothing,

residence, education, medical treatment, and reasonable expenses of

marriage.

In addition, under circumstances specified under the Hindu Adoption

and Maintenance Act2- if she becomes a widow, she is a ‘dependant’

and her maintenance amount forms a charge on the assets inherited by

the heirs of her father or mother.

More often than not- with or without any State made law- the parents

have been discharging their parental obligations out of sheer love and

2 section 21

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concern and empathy in case of the daughter in distress. Things done

voluntarily are more enduring.

I submit- the liability of the parents under the present system has been

extended much beyond reasonable and natural limits, having regard to the

actual facts including the fact that after marriage the daughter passes over to

the husband’s family and the husband is under a legal and a moral obligation

to maintain her.

C. Pros and Cons of the 2005 amendment3

The question is : how far are the laws conducive to the healthy survival of

the families as an institution? My submission on the matter is as under:

The Act disturbs the finely integrated emotional and sentimental threads

woven into Hindu families. Existing family realities and the existing healthy

attitude of the Hindu families towards the daughters are not appreciated. The

parents take up full responsibility of their daughters until they are settled in

life, not only as a duty but also out of love and affection. Given the means at

their disposal, by and large, sons and daughters are treated equally given the

growing egalitarian concept that has developed in the country. If the parents

are dead, in the large majority of the cases the brothers take full

responsibility of their sisters,- at times even by incurring loans and

postponing their own marriages. This has been the culture of the Hindu

society- given the sacred teachings handed over to us down several

centuries. The fabric ought not to be disturbed. Even after marriage, during

moments of crisis she turns to her parents and brothers for aid and advice. It

3 Also see ‘bill on property rights to daughters :the forgotten wife’ :Indian Law Reports 1992(Kar) JS at p. 21 by the same author

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is in the face of these facts that the law concerning property rights to

females has been amended in an attempt to bring about equality with

mathematical accuracy without taking into consideration the existing

realities. There are some equations which may not fit into the mathematical

formula of equality but have stood the test of time, as being based on the

solid foundation of love/affection, care and concern.

One argument in support of the amendments may be- that she too is required

to take liabilities on par with the son. But then, let us be true to the issue-- Is

she practically in a position to discharge and share all the responsibilities

that her brother may take up? Or will she end up taking the benefit and

unable to discharge the burden? The question must be answered

dispassionately and objectively and not just with a feministic bent of mind.

Real life situations show that after her marriage –she moves out to the place

of her husband and her matrimonial home becomes the center of all her

attention/ affection, care and concern. This is not because she does not have

any feelings for her maiden home but because circumstances are such that

she has to put the convenience etc of her matrimonial family on the top of

the priority list. She gets so engrossed with her own family and children that

- she starts identifying herself more with the matrimonial family than with

the family of her birth as a matter of course. She even compromises her

career ambitions to make the matrimonial home a comfortable place for her

husband and children. No one need be blamed for it. Home management is a

laudable job in deed,- in a nut shell- it means shaping and tuning the future

generation who are the custodians of the future generation- though

unfortunately it is yet to get its rightful place. It is a system that has stood

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the test of time. But under these circumstances – is she in a position to take

up the liabilities towards her parents also? The term ‘Liability’ must be

given a broader meaning to include not only the monetary liabilities but also

the responsibility of looking to the physical needs of the parents etc in the

maiden home. It is not just sending a monthly cheque to her parents. A

stage is reached where the parents need physical caring and physical

nearness more than just money. Howsoever much she may desire, and even

with the most broad-minded and understanding husband and in-laws, she

would not be in a position to discharge this liability. It is ultimately the sons

and the daughter-in-laws who are to take care of her parents. The parents

also would like to be taken care of by the son rather than the married

daughter. Somewhere deep inside, they would feel embarrassed if

circumstances arise where they have to rely on the married daughter during

their old age days. This is the psyche deeply ingrained due to what ever

reasons.

Speaking of monetary liability, it would be unfair to burden her with the

liabilities in her maiden family that have been incurred after her marriage,

without her knowledge. At the same time it would be impracticable and

unfair to expect the father and the brothers to consult her and get her consent

for every transaction involving family liability – which are matters which

any family would like to hold close to its chest.

Suppose the father dies leaving only liabilities and debts of the nature of

pious obligations but no assets- is she still to share the liabilities along with

her brother? Can the creditors proceed against her also for recovery?

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Allotting an equal share in immovable property– has its own problems

specially in an average family with moderate means. When she moves out

to live with her husband- she becomes an absentee landlord; or she may be

induced or forced to demand a partition and sell her share. Generally

partition takes place after the death of the father; she may become

instrumental – willing or unwilling- in splitting the family bonds- for which

somewhere deep in her mind she would be repenting for her helplessness;

possibilities of she being caught up in tormenting moral and emotional

dilemmas cannot be ruled out. Given the social set up in the Hindu families

–she would be hesitant to go against the wishes of her husband. On one

hand- there may be a husband -coaxing /forcing or prevailing on her to

demand her share in her parents’ property – and on the other hand- her own

realization about the love and concern with which she has been brought up

by them; the sleepless nights that may have been spent by them during her

moments of discomfort- may tear her apart. Possibilities of more female

infanticide/ or suicides/ and more litigations cannot be ruled out.

Equal rights in agricultural lands given to daughters under the 2005

amendment will lead to fragmentation of the lands which will reduce the

optimum utility of the land and also make life tough for the families with

small holdings. The family of her birth could fall in disarray by such an

action. By and large, agricultural holdings in India are not as huge as to

accommodate a share in it for every heir. Mainly they are a modest means of

livelihood.

The rights pertaining to dwelling houses cannot simply be comprehended.

Rights in the dwelling houses along with the right in agricultural lands is

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the height of injustice to the family of her birth. No wonder if this right is

traded for monetary gain.

This kind of amendment would probably fit in a matriarchal family where

sons-in-law moves into his wife’s family and the daughter continues to stay

with her parents – in which case her brother would move on to the family of

his wife and together they would look after the needs etc of her family and

also inherit their estate. India, primarily has a patriarchal set-up where law

under consideration would do more injustice than justice.

D. Place wife on an equal footing as the husband

The extent of the wife’s identification with her husband’s family would

justify placing the wife on an equal footing as that of her husband. Let us try

to weigh her property rights as a wife versus her contributions towards

‘making that home a worthy place to live.’ The non-monetary contribution

of the wife like the home-making efforts, the sacrifices made by her like

foregoing career opportunities or carrying on the career in a low profile, her

opportunity cost of time etc must be recognized and protected. Under the

present legal system, during the lifetime of her husband, her monetary

security lies in the maintenance provisions under the Hindu Adoption and

Maintenance Act; the Criminal Procedure Code and the Hindu Marriage Act.

In addition we have our testamentary laws under which an unscrupulous

husband can drive his illiterate wife and the minor children penniless by

making a will of his self-acquired property and his share in the Mitakshara

Property (sec 30 of the HSA ) in favour of a total stranger. {Here again her

father is one of the persons who comes to her rescue under the Hindu

Adoption and Maintenance Act under which a widowed daughter is his

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dependant under specified conditions.} A truly insufficient caring for a

person who dedicates her whole life for that family (minus the initial years

before marriage). This is because our legalistic concept of title to property

obscures the fact that man and woman are equal partners in marriage and

have contributed together monetarily or non-monetarily to family welfare.

As of now, she has a share as a ‘widow’. But then, which woman would

aspire for ‘widowhood’ to obtain a share in the husband’s property? What

she needs is a share as a ‘wife’ by recognizing her non-monetary

contribution towards home-making specially in cases where she may not be

a working woman.

There can be no two opinion on the point that equals must be treated equally.

Until marriage– daughter and the brother must be treated on par as regards

all matters like- food, clothing, shelter, education, marriage expenses or

performance of marriage in a manner befitting the family standing and

status and means. Marriage brings about a change in the status and the

liability shifts over to the husband from the father. As Manu puts it:

Father is to protect the daughter in childhood; husband in her youth and the

son in her old age. The saptapadi speaks of caring for each other treating

each other as ‘sakha-friend’. Under the present legal system also the

husband is under primary and personal obligation to maintain his wife.

However she is the ‘forgotten wife’ as far as her property rights are

concerned. The Act and the Amendment under consideration is not alive to

the real life situations. This is the ultimate consequence.

In Conclusion- one obvious reality is that after marriage – either the wife

must move into the husband’s family as in the patriarchal system or the

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husband must move into the wife’s family as under the matriarchal system.

Following are some of the suggestions offered for the patriarchal system

which is prevalent in our country:

Accept the fact that there is a limit up to which a sister can be treated

on par with the brother.

After marriage treat husband and wife on an equal footing. Property

earned during the subsistence of marriage be regarded as joint

property subject to maintenance rights of the dependants. Let the

legalistic concept of title not come in the way of recognition that both

are equal partners in home making efforts

Specify a limit beyond which property cannot be bequeathed away in

order to provide for the heirs as under the Mohammadan law.

If the present 2005 amendment is to continue in its present form- in

the interest of the harmonious family relation- link the inheritance

rights in agricultural land - to the quantum of property held by the

deceased at the time of his death and her own income and her

husband’s income and property worth.

Realize and promote the view that the best form of security is one

which comes from earnings out of self exertion. Everything else is

a bonus. So equip the females by enhanced education facilities

and the like

In fact a threadbare discussion on the issues involved would have served the

cause of the women folk better.

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Gist

Daughters right to property and Hindu Succession (amendment) Act

2005: another blow in harmonious family relations

Is our society moving away from family bonds and attachment with the shift

from joint families to nuclear families? Is the need for family security

lessening with the society becoming more individualistic and independent?

Have our law makers given another blow at the time tested harmonious

relations woven into the fabric of Hindu families? The first dig at the

relations began when daughters were made coparceners in the family of their

birth and the process of digging was completed by the 2005 amendment to

the Hindu Succession Act. The amendment is an attempt to bring about

mathematical equality between brothers and sisters as though equality in

property is the only criteria by which to judge an egalitarian society. Our

lawmakers have conveniently forgotten to appreciate the daughter’s role and

her status as a ‘wife vis a vis her husband’

Hindu Succession Act enacted in 1956 was commended by J.Duncan

M.Derrett4 with his observation that the “law of Succession has been so

comprehensively reformed that one need not fear of dying intestate. In a

sense, Parliament has made a WILL for everyone in HSA. A person can die

intestate with confidence that no close relation will be left unprovided for,

let alone destitute. The Parliament has considered and set out in an order of

priority, the relations that in most cases are close to the deceased and whose

claims have through the centuries been recognized by law or in the wills of

those classes which normally leave wills. The predominantly patrilineal

4 Introduction to Modern Hindu Law: Oxford University Press: 1963 at p. 365

15

structure has been recognized but considerably modified by the undeniable

claims of close cognate relations.”

This is not to say that law must remain static because it was praised at one

point of time. But laws have to be realistic. Life of law is not logic but

experience. In this case the logic of equality has been stretched to a breaking

point. Does the Act serve to promote the harmonious family relations or

does it boomrang? Are the liabilities of her parents extended beyond

reasonable limits? Is the daughter in a practical position to discharge her

liabilities towards her parents after her marriage? Does this kind of

amendment fit into the patriarchial system prevalent in India?

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