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Changes Brought in the Position of Women after the 2005 Amendment

Categories: Social Legislations
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Published on: January 18, 2013

The Constitution of India provides that every person is entitled for equality before law and equal protection of the laws and thereby prohibits discrimination on the basis of caste, creed and sex. The discrimination on the basis of sex is permissible only as protective measures to the female citizens as there is need to empower women who have suffered gender discrimination for centuries. Empowerment of women, leading to an equal social status with men hinges, among other things, on their right to hold and inherit property. Civilized societies across the globe ensure that women’s inheritance rights are more secure than those of men because women take on the tremendous responsibility of producing and nurturing the next generation. In India, women’s rights have suffered serious setbacks among all communities. Before 1956
Despite the Hindu Succession Act being passed in 1956, which gave women equal inheritance rights with men, the mitakshara coparcenary system was retained and the government refused to abolish the system of joint family. According to this system, in the case of a joint family, the daughter gets a smaller share than the son . While dividing the father’s
property between the mother, brother and sister, the share is equal.
The Constitution of India enshrines the principle of gender equality in its Preamble and Parts III, IV and IVA pertaining to Fundamental Rights, Fundamental Duties and Directive Principles respectively. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. And now as India becomes increasingly aware of the need for equal rights for women, the government can’t afford to overlook, property rights have a deep impact on the national economy. The need to dispense gender justice raises deep political debate and at times acrimony in legislative forums. This enthused the ?house? to move a bill to make amendments in the Hindu Succession Act, to secure the rights of women in the area of property.
The aim is to end gender discrimination in Mitakshara coparcenary by including daughters in the system. Mitakshara is one of the two schools of Hindu Law but it prevails in a large part of the country. Under this, a son, son’s son, great grandson and great great grandson have a right by birth to ancestral property or properties in the hands of the father and their interest is equal to that of the father. The group having this right is termed a coparcenary. The coparcenary is at present confined to male members of the joint family, it has been further elucidated in the project.
The Hindu Succession (Amendment) Act, 2005 is a landmark. After 50 years, the Government finally addressed some persisting gender inequalities in the 1956 Hindu Succession Act (1956 HSA), which itself was path-breaking. The 2005 Act covers inequalities on several fronts:agricultural land; Mitakshara joint family property; parental dwelling house; and certain widow’s. The amendment has come into operation from 2005; our project makes an analysis of this amendment, in that specifically dealing with changes brought in the woman’s property rights in Mitakshara joint family property, what effects it will have on the position of women, loopholes in the amendment, its advantages and disadvantages and few suggestions to make it more effectual.

Position Of Woman (In Regards To Property Rights) Prior To Enactment Of Hindu Succession Act, 1956-
Since time immemorial the framing of all property laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being. Prior to the Act of 1956, Shastric and Customary laws, which varied from region to region, governed Hindus and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to diversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex.
But, however the social reform movement during the pre-independence period raised the issue of gender discrimination and a number of ameliorative steps were initiated. The principal reform that was called for, and one which became a pressing necessity in view of changed social and economic conditions, was that in succession there should be equitable distribution between male and female heirs and the Hindu women’s limited estate should be enlarged into full ownership (however that actually never happened). The only property over which she had an absolute ownership was the Stridhan meaning women’s property.

What Is Mitakshara Coparcenary?
Coparcenary literally means Joint inheritance or heirship of property. Also called parcenary. Coparcenary is a narrower body of persons within a joint family, and consists of father, son, son’s son, son’s son’s son. The disparity in the property rights on the basis of gender is deep rooted and can be traced back to the ancient times. Traditional Hindu inheritance laws evolved from the ancient texts of Dharmashastras and the various commentaries and legal treatises on them. In particular, the Mitakshara and the Dayabhaga legal doctrines, dated around the twelfth century AD govern the inheritance practices among the Hindus. In most of northern and parts of western India Mitakshara law is prevalent.Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparceners, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with
every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. The Mitakshara law also recognizes inheritance by succession but only to the property separately owned by an individual male or female. Females are included as heirs to this kind of property by Mitakshara law.

Changes Brought In The Position Of The Women (Specifically Focusing On Section 6)
Out of many significant benefits brought in for women, one of the significant benefit has been to make women coparcenary (right by birth) in Mitakshara joint family property. Earlier the female heir only had a deceased man’s notional portion. With this amendment, both male and female will get equal rights.
In a major blow to patriarchy, centuries-old customary Hindu law in the shape of the exclusive male mitakshara coparcenary has been breached throughout the country.
The preferential right by birth of sons in joint family property, with the offering of “shradha” for the spiritual benefit and solace of ancestors, has for centuries been considered sacred and inviolate. It has also played a major role in the blatant preference for sons in Indian society. This amendment, in one fell swoop, has made the daughter a member of the coparcenary and is a significant advancement towards gender equality.
The significant change of making all daughters (including married ones) coparceners in joint family property – has been of a of great importance for women, both economically and symbolically. Economically, it can enhance women’s security, by giving them birthrights in property that cannot be willed away by men. In a male-biased society where wills often disinherit women, this is a substantial gain. Also, as noted, women can become kartas of the property. Symbolically, all this signals that daughters and sons are equally important members of the parental family. It undermines the notion that after marriage the daughter belongs only to her husband’s family. If her marriage breaks down, she can now return to her birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.
Now under the amendment, daughters will now get a share equal to that of sons at the time of the notional partition, just before the death of the father, and an equal share of the father’s separate share. Equal distribution of undivided interests in co-parcenery property. However, the position of the mother vis-à-vis the coparcenary stays the same. She, not being a member of the coparcenary, will not get a share at the time of the notional partition. The mother will be entitled to an equal share with other Class I heirs only from the separate share of the father computed at the time of the notional partition. In effect, the actual share of the mother will go down, as the separate share of the father will be less as the property will now be equally divided between father, sons and daughters in the notional partition.

The Preamble to the Amending Acts indicates the objective as the removal of discrimination against daughters inherent in the mitakshara coparcenary and thereby eradication of the baneful system of dowry by positive measures thus ameliorating the condition of women in the human society.
It is necessary to understand that if equality exists only as a phenomenon outside the awareness and approval of the majority of the people, it cannot be realized by a section of women socialized in traditions of inequality. Thus there is need to social awareness and to educate people to change their attitude towards the concept of gender equality. The need of the hour is also to focus attention on changing the social attitudes in favour of equality for all by enacting a uniform law.
The difficult question of implementing the 2005 Act remains. Campaigns for legal literacy; efforts to enhance social awareness of the advantages to the whole family if women own property; and legal and social aid for women seeking to assert their rights, are only a few of the many steps needed to fulfill the change incorporated in the Act.

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