The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp.

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HINDU JURISPRUDENCE ON SUCCESSION AND GENDER EQUALITY: A CRITICAL STUDY

Ravi Kant Mishra*
Empowering women is a prerequisite for creating a good nation, when women are empowered, society with stability is assured. Empowerment o f women is essential as their thoughts and their value systems lead to the development of a good family, good society and ultimately a good nation.
-A PJ Abdul Kalam

Abstract: Equality before law, equal protection of law, equality of opportunity in social, economic and political spheres are the bedrock of justice and discrimination of any kind on any basis is antithesis to the concept of equality and justice. The Hindu Jurisprudence on Succession has a unique feature of Coparcenary system which provides birth right to the male child on the ancestral property and thus deprives females. This system discriminates between the male and female successor on the basis of sexes. Keeping in view the interest of the womens the Indian Parliament amended the existing provisions of law and extended it up to womens. This article tries to critically evaluate the legal position of Hindu Succession Law and its implications on Indian society and the right to equality as well. Equal emphasis is made on the nature of the right and the nature of property created and their legal impact on the concept of Stridhan prevailing in Indian Society. Key Words : Gender Equality, Hindu Law, Succession.

Introduction: Equality before law, equal protection of law, equality of opportunity in social, economic and political spheres are the bedrock of justice and discrimination of any kind on any basis is antithesis to the concept of equality and justice. Women, constituting half of the Indian population, self sacrifice and self denial are whose nobility and fortitude have been subjected to all inequities, indignities, inequality and discrimination.1 They always remained bereft of the advances in social development, education, health, employment, economic participation, science and technology etc. because of the traditional and stereotype roles of nursing children, caring husband and in- laws, and carrying out domestic chores such as cooking and cleaning etc. accorded to them. The root cause of womens subjection is their economic dependence on men and as long as women will be denied for or deprived of economic independence, there cannot be equality between sexes.2 Proprietary rights are of special importance and significance because economic independence has usually an important bearing on the well being of a class. In the realm of property, the old Hindu law granted to women limited proprietary rights and discriminated women on the ground of sex in the matter of intestate succession to the estate of the parents or husband. Thus, the position of women in India under the traditional Hindu law was much worse because of the restrictions on the rights of inheritance of women and the limited estates of Hindu women. 3 Being cognizant to the unequal position of women in intestate succession, after independence when old human values assumed new meaning and also due to the
* Assistant Professor, Department of Law, North Eastern Hill Uni versity (NEHU), Shillong, Meg hal aya, INDIA.
1 2

See: Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864 at 1871 See generally: B.C. Nirmal, Taking Violence against Women Seriously: International and Domestic Human Rights Jurisprudence, in Bimal N. Patel (ed.) India and International Law-II, Koninklijke Brill NV, The Netherlands, 2008, p 413-452; M onica Chawla, Gender Justice: Women and Law In India. (New Delhi: Deep and Deep Publications 2006); C.L. Anand, Equality, Justice and Reverse Discrimination. (Delhi: M ittal Publication 1987); Sachs and Wilson, Sexism and the Law, in Cambell and Wiles (ed.), Law in Society. (M artin Robertson and Co. Ltd. 1978); W.H. Chafe, Women and Equality. (New York: Oxford University Press 1977) 3 A.S. Altekar, The Position of Women in Hindu Civilization.(Delhi: M otilal Banarsidas 1978); Priya Nath Sen, General Principle of Hindu Jurisprudence. Tagore Law Lectures, (Allahabad Law Agency, 1984), at 125-175; R.N. M ishra, Maynes Hindu Law and Usage. 15th edition. (New Delhi: Bharat Law House:

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growing worldwide impact of human rights and fundamental freedoms 4 the need for emancipation of women was realized and to set up a new social order to give women equal status and place of honor and to abolish discrimination in succession based on gender became the demand of the time. In the year 1956, the Hindu Succession Act, came into existence which improved the pre-existing rights of Hindu women but it had some gross features of discrimination such as retention of Mitakshara Coparcenary 5 , discriminatory provisions relating to devolution of tenures, right to partition, dwelling rights etc. In the year 2005, a major Amendment6 has taken place with an aim to eliminate gender discrimination in the arena of succession or inheritance laws. This article aims to discuss the efficacy and importance of the Hindu Succession Amendment Act, 2005 in removing or eliminating gender inequities and in accelerating empowerment of women in lieu of Hindu jurisprudence and the demand of time. This article also intends to examine the impact and repercussions of amendment provisions on family, society and other social organizations. Hindu Jurisprudence on Womens Property Rights: Background in Brief: Indian Jurists feel proud that at least in theory their indigenous jurisprudence 7 allowed women, stridhanam8 , an asset available at their disposal or at least for their enjoyment and security at a time, when

For efforts at international and regional levels to empower women see generally: B.C. Nirmal, Taking Violence A gainst Women Seriously: International and Domestic Human Rights Jurisprudence, in Bimal N. Patel (ed) India and International Law-II, Koninklijke Brill N V, The Netherlands, 2008,p 414-421; R.C.Lahoti, Womens Empowerment Role of Judiciary And Legislature,(2005) 2SCC (J) p49-50;K Tomasevski, Women and Human Rights, Women and World Development Series, (London: Zed Books 1993); J. Kerr, Ours by Right: Womens as Human Rights. (London: Zed Books 1993); R.Cook, Human Rights of Women: National and International Perspectives. (Philadelphia: University of Pennsylvania Press 1994); Amnesty International, Human Rights are Womens Rights. (London: Amnesty International 1995);Katarina Tomasevski, Womens Rights, in Janusz Symonides (ed) Human Rights Concept and Standards. (New Delhi: Rawat Publications 2002) at 231-254. 5 Under the Mitakshara System of Joint Family, which prevails in all parts of India apart from Bengal only males are members (coparceners) of the Joint Family and the right to inheritance was by way of survivorship and not by way of succession. The son acquired a right and interest in Joint Family Property on birth while a woman family member only had a right to maintenance. However the Hindu Succession Act gave a share to the first class female heirs (daughters and wives) in the share of the father / husband in the joint family property who died intestate (without making a will). However this share was not equal to the shar e, which a son inherited, since the son was deemed to be coparcener (member of the joint family) by birth. For e.g. in a joint family consisting of a father, a son and a daughter, both the father and the son, according to the Mitakshara coparcenary system, would be equal owners of the property. Thus when the father died, after the 1956 Act, his share would devolve equally on both the s on and daughter. However the daughter in this particular case would only get 1/4th share of the property whereas the brother who was already a co owner would have his half share plus 1/4th share of the property. 6 W.e.f.9th September, 2005 7 On Changing Concept of Hindu Jurisprudence, see: Werner F. M enski, Hindu Law Beyond Tradition and Modernity. (New Delhi: O xford University Press 2003) 8 Stridhanam means womans property. In the entire history of Hindu Law, womans rights to hold and dispose of property have been recognized. Kinds of Womans PropertyWhat is the character of property that is whether it is stridhan or womans estate depends on the source from which it has been obtained. They are: Gifts and bequests from relations- Such gifts may be made to woman during maidenhood, coverture or widowhood by her parents and their relations or by the husband and his relation. Such gifts may be inter vivos or by will. The Dayabhaga School doesnt recognize gifts of immovable property by husband as stridhan. Gifts and bequests from non-relations- Property received by way of gift inter vivos or under a will of strangers that is, other than relations, to a woman, during maidenhood or widowhood constitutes her stridhan. The same is the position of gifts given to a woman by strangers before the nuptial fire or at the bridal procession. Property given to a woman by a gift inter vivos or bequeathed to her by her strangers during coverture is stridhan according to Bombay, Benaras and M adras schools. Property acquired by self exertion, science and arts-A woman may acquire property at any stage of her life by her own self exertion such as by manual labour, by employment, by singing, dancing etc., or by any mechanical art. According to all schools of Hindu Law, the property thus acquired during widowhood or maidenhood is her stridhan. But, the property thus acquired during coverture does not constitute her stridhan according to M ithila and Bengal Schools, but according to the rest of the schools it is stridhan. During husbands lifetime it is subject to his control.
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in the west, wives were unable to own property separately from their husbands except as beneficiaries under some trust or settlement. 9 But, in fact, it was not more than a security against ill behavior of her in laws. The Hindu Succession Act, 1956 10 checked this discrepancy up to some extent11 (In the case of C. Masilamani Mudaliar v. Idol of Shri Swaminathanam12 the Supreme Court was required to determine the scope of right of Hindu Female to dispose of property acquired or possessed under a will executed prior to the commencement of the Hindu Succession Act. 1956. The Court said that Section 14 of The Hindu Succession Act should be construed harmoniously consistent with the Constitutional goal of removing gender-based discrimination and effectuating economic empowerment of Hindu Females), rather it may
Property purchased with the income of stridhan- In all schools of Hindu Law it is a well settled law that the properties purchased with stridhan or with the savings of stridhan as well as all accumulations and savings of the income of stridhan, constitute stridhan. Property purchased under a compromise- When a person acquires property under a compromise; what estate he will take in it, depends upon the compromise deed. In Hindu Law there is no presumption that a woman who obtains property under a compromise takes it as a limited estate. Property obtained by a woman under a compromise where under she gives up her rights, will be her s tridhan. When she obtains some property under a family arrangement, whether she gets a stridhan or womans estate will depend upon the terms of the family arrangement. Property obtained by adverse possession- Any property acquired by a woman at any stage of her life by adverse possession is her stridhan. Property obtained in lieu of maintenance- Under all the schools of Hindu Law payments made to a Hindu female in lump sum or periodically for her maintenance and all the arrears of such maintenance constitute stridhan. Similarly, all movable or immovable properties transferred to her by way of an absolute gift in lieu of maintenance constitute her stridhan. Property received in inheritance- A Hindu female may inherit property from a male or a female; from her parents side or from husbands side. The Mitakshara constituted all inherited property a stridhan, while the Privy Council held such property as womans estate. Property obtained on partition- When a partition takes place except in M adras, fathers wife mother and grandmother take a share in the joint family property. In the Mitakshara jurisdiction, including Bombay and the Dayabhaga School it is an established view that the share obtained on partition is not stridhan but womans estate. Stridhan has all the characteristics of absolute ownership of property. The stridhan being her absolute property, the female has full rights of its alienation. This means that she can sell, gift, mortgage, lease, and exchange her property. This is entirely true when she is a maiden or a widow. Some restrictions were recognized on her power of alienation, if she were a married woman. For a married woman stridhan falls under two heads: The saudayika (gifts of love and affection) - gifts received by a woman from relations on both sides (parents and husband). The non-saudayika- all other types of stridhan such as gifts from stranger, property acquired by self-exertion or mechanical art. Over the former she has full rights of disposal but over the latter she has no right of alienation without the consent of her husband. The husband also had the power to use it. On her death all types of stridhan passed to her own heirs. In other words, she constituted an independent stock of descent. In Janki v. Narayansami (1906)43 IA 87, the Privy Council aptly observed, her right is of the nature of right of property, her position is that of the owner, her powers in that character are, however limited So long as she is alive, no one has vested interest in the succession. For comprehensive note on stridhan etc. see: R.N. M ishra, Maynes Hindu Law and Usage. 15th edition. (New Delhi: Bharat Law House) at 1054-1101 9 J.D.M . Derrett, A Critique of Modern Hindu Law. (Bombay: M .N.P. Pvt. Ltd. 1970) at 195 10 For detailed study of the Hindu Succession Act, 1956 and position of women under old law of inheritance in India see generally: S.A. Kader, The Hindu Succession Act, 1956. (New Delhi: Eastern Law House 2004); Sir G.. Banerji, Hindu Law of Marriage and Stridhan., (Delhi: M ittal Publications 1977). For comprehensive study of the position of women under the Hindu Succession Act, 1956 see: B. Sivaramayya, Coparcenary Rights to Daughters: Constitutional and Interpretational Issues,(1997) 3 SCC (J) p 25-38;B. Sivaramayya, Gender Justice, in S.K. Verma and Kusum (ed) Fifty Years of the Supreme Court: Its Grasp and Reach. (New Delhi: Indian Law Institute 2001) at 301-306. 11 Sec. 14 of Hindu Succession Act, 1956, provides that Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Section 14 removes pre-existing disabilities fastened on the Hindu female limiting her right to property without full ownership thereof. It also removes gender based discrimination and effectuates economic empowerment of Hindu females. For judicial decisions on Section 14 see generally, Pratap Singh v. U.O.I, AIR 1985 SC 1695; C. Masilamani Mudaliar v. Idol of Sri Swaminathanam S. Thirukoil (1996) 8 SCC 525; Bai Vajia v. Thakorbhai Chelabhai (1979) 3SCC 300; Jamuna Bai v Bholaram AIR 2003 MP 40; Yamanappa Dudappa v. Yellubai, AIR 2003 Kant 396; Gulab Rao Balwant Rao Shinde v. Chhabu Bhai Balwant Rao Shinde, AIR 2003 SC 16;Lal Chand v Kali Bai, AIR 2004 P&H 173; P. Rameshwara Rao v. I. Sanjeeva Rao, AIR 2004AP 117; Vallabh v. Ginni Devi, AIR 2004 Raj 286; Jose v. Ramakrishnan N. Radhakrishnan, AIR 2004 Ker 16; CJ Sheri v. Savitir Chogule, AIR 2005 Kant 30; Sharad Subramanyan v. Soumi Mazumdar, AIR 2006 SC 1993; Sahib Singh v. Gurudwara Sahab Narike, AIR 2006 SC 3282 12 (1996) 8 SCC 525

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be argued that this Act has not only improved the status of women but has made protective discrimination in favour of females. Out of twelve Class-I heirs, eight heirs are females.13 Daughters and their children have the equal right or share of their brothers and their sons in the property left out by father. 14 The mother is entitled to inherit the property of the son but the father is not entitled for the same because he is Class-II heir. Although in the coparcenary property, daughter is not entitled to inherit it but she can inherit equal share similar to brother from the interest or property left by the father in the coparcenary property. The honorable Supreme Court has recognized the right of the mother in the coparcenary property equal to her sons.15 The question of utmost importance is that why the Act did not touched the coparcenary system and the answer may be the existing social orders and the stereotype characterization of women as emotional, passionate and seductive. 16 The Hindu Succession (Amendment) Act, 2005: A Critique The Hindu Succession (Amendment) Act, 2005 is a progressive and remarkable step towards gender justice. The Amendment dilutes patriarchal system prevailing in Hindu society which has been considered as a source of discrimination among Hindu male and female. It also gives a serious blow to the Mitakshara coparcenary system, strengthening the notion of patriarchy in Hindu society. In other words, by this Amendment Act Indian Parliament has made an attempt to diminish discrimination between son and daughter in respect to succession of ancestral property. Under Mitakshara system of law, the whole property of any Hindu male is divided into self acquired and ancestral property. In respect of intestate succession of self acquired property the law is uniform for both son and daughter. However, the law of intestate succession for ancestral property discriminates between son and daughter. The Amendment Act, 2005 tries to encounter inequality provisions at several fronts e.g. agriculture lands, the Mitakshara coparcenary property, pious obligation of son, parental dwelling house and certain widows right. The first most important change brought by this Amendment Act, 2005 is the substitution of a new section 6, which provides that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as a son. 17 Secondly, on the death of a Hindu having interest in coparcenary property, such property would devolve either by testamentary or intestate succession as the case may be but not by survivorship. 18 Thirdly, this Amendment also removes the concept of pious obligation of son19 etc. which was giving special status to son in comparison to daughter. However, this Amendment is not comprehensive enough and involves various social and legal issues. The coparcenary status of a girl child is no doubt a hard attack upon Mitakshara patriarchal system but coparcenary system still exist is a matter of grave concern. As a coparcenary comprise the father and his three male lineal descendants. A coparcener has right by birth in the property of the joint family i.e. ancestral property. The coparcener also has the right to partition, to get his individual interest separated. However, the persons separate interest becomes communal property again on the birth of a son who acquires an equal interest in the property. Women whether daughters, mothers or widows cannot be part of
13 14

See: Schedule, The Hindu Succession Act, 1956 See: Sections 8,9,10 of the Hindu Succession Act,1956 15 Gurupad Khandappa v. Heerabai AIR 1978 S.C. 1239; See also: R.R.Gupta, Hindu Statutory Laws and Gender Justice, Journal of the Legal Studies, 2004-05, at 119-120 16 See: Yusuf Abdul Aziz v. State of Bombay, 1954, Cr.L.J. 886 (SC); Soumithri Vishnu v. Union of India, AIR 1985 SC 1618 17 Section 6(1) says that: on and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu Family governed by the M itakshara law, the daughter of a coparcener shall(a) By birth become a coparcener in her own right in the same manner as the son; (b) Have the same right in the coparcenary property as she would have had if she had been a son: (c) Be a subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu M itakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. 18 Section 6(3); (The coparcenary property of a Hindu male who dies after the commencement of the Act without leaving behind him any female heirs (or male heirs who claim through certain female relatives) will devolve upon the remaining male coparceners equally. This is something called survivorship. It is an exception to the general rule of succession). 19 Section 6(4); (the doctrine of the pious obligation, under which the coparceners were bound to honour the debits incurred by the father, grandfather or great grandfather)

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the coparcenary but they only have a right to maintenance. This inequality was diminished by Hindu Succession Act, 1956. It is laid down that the separate share of the deceased, who died intestate, computed through the device of a notional partition just before his death, would devolve according to the Succession Act, which gave an equal right to the first class female heirs daughters, widows and mother.20 But the Act retained coparcenary system in respect of ancestral property; therefore, the share of female heirs was not equal to male heirs. Thus, if a Hindu male dies leaving a son and a daughter then according to the explanation attached to Section 6 of the Act, there will be deemed partition just before the death of the person. In this notional partition the father and son share equally and each gets half of the property. Again fathers half share shall be equally divided between son and daughter as Class-I heirs. In effect, therefore, the daughter gets one fourth of the property, while the son gets his own half from the deemed partition as a coparcener and an additional half from the share of his father which will be in total three-fourth of the property. Now, this inequality has been removed through coparcenary status to the girl. But the question arises how much the actual scenario be changed? As the Amendment will only benefit to those women who have taken birth in families having ancestral property. Similarly, there is no precise definition of ancestral property. 21 Keeping in view the fact that families have long since been fragmented and the joint family system is on the decline it is not possible to comment that to whom this law will benefit. Another limitation is that it does not apply to self-acquired property. However, the bulk of property and wealth at least in urban areas, which comes from modern economic investments and government services etc. falls outside the purview of joint family property and thus unaddressed by this law. Justice cannot be secured for one category of women at the expense of another as the position of the mother and widow stays same. They, not being a member of the coparcenary will not get a share at the time of notional partition. The mother and widow will be entitled to an equal share with the class I heirs only from the separate share of the deceased computed at the time of notional partition. In effect the actual share of the mother and widow will decrease because their shares depend upon the shares of their respective predeceased son and husband which they get after notional partition. To give equal right in dwelling house, Section 23 has been deleted which was denying a married daughter the right to residence in an inherited parental home unless she is widow, deserted or separated from her husband and not to claim partition of the same in any circumstances. Another drawback of this section was that the word family was not defined which made this section open for judicial interpretations.22 Now by this Amendment Act, a married daughter has the right to residence as well as partition of the dwelling house. The positive aspect of this change is that it will make women confident, self dependent etc. and women facing domestic violence will have some place to go not on the mercy of others but as a matter of right. The negative aspect of this Amendment is that it may increase the problem and burden of aged parents because it will be difficult for them to reconcile between the interests of son and daughter. This will also increase the use of testamentary freedom. Another problem which may arise from the side of in-laws is demand from women to claim her shares in parental properties. Since husband 23 is her
20 21

Section 6 and Schedule I of The Hindu Succession Act, 1956 Generally when a property is passed on for generations as inheritance from forefathers to the successors is said to be ancestral property. 22 For judicial interpretation of section 23, see cases: Janakimmal (2003) 1 ILD 869 M ad; Sitaben v. Bhanadahai Madaari Bhai Patel, AIR 2002 Guj. 376; Jayamma v. Muniyamma, 2000, AIHC 4012, M ad; Geeta Sekhar 2001, AIHC 3264;Narasimhamurty v. Susheel Bai, AIR 1996 SC 1826. For critical analysis of judicial decisions see: C.S. Raghu Raman ( et all), Legal Rights of Female Heirs in the Dwelling House Under Section 23 of the Hindu Succession Act, 1956, (2005) 6 SCC (J) p 18-25 23 Under Hindu law daughters husband is not considered a member of parental joint family, therefore as per laws he cant live in his wifes parental house without partition. In this concern Section 44 of Transfer of Property Act, 1882 is considerable, which says that: Where one or two or more co-owners of immovable property legally competent in that behalf transfers his/her share of such property or any interest their in, the transferee acquires as to such share or interest, as far as is necessary to give effect to the transfer, the transferors right to joint possession or other common or part enjoyment of the property, and to enforce a part ition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest transferred. Where the transferee of a share of dwelling house belonging to an undivided family is not a member of the family, nothing in this s ection shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

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guardian it would be very difficult for her to choose between the wishes of husband and protection of parental home. If she leans towards jointness of parental property she may have to suffer various practices of domestic violence such as cruelty, bride burning etc. This right of daughter may be misused in cases of uneducated and rural daughters as they may be castigated by tricksters on the name of marriage for property. Apart from this, in ancient Indian culture the tradition of Kanyadan was supported with the reason that by marriage a girl left her paternal home forever therefore, Kanyadan was a form of gift in compensation of girls interest in the paternal property. But gradually it has taken the form of dowry, a social evil. The grooms party often demands a complete inventory of ornaments, clothing, cash, bonds, utensils and other property that will accompany the bride, before the marriage proposal is accepted. This is regarded as the daughters share in her family inheritance. Henceforth, her husband must accept all responsibility for her economic needs. 24 Now, the question arises that when she is an equal partner in the ancestral property then who will pay the dowry? The expectation that this will curb dowry system is blurred but it may fuel the vices of female infanticide and foeticide. In that case it would be a double jeopardy for women. Earlier she had to face cruelty of in- laws in the name of dowry and now she will have to face ill relationship with paternal home. Moreover, like cases of inheritance it is not clear whether sisters will actually claim their shares in the property or sacrifice it in the name of maintenance of good family relationship. Next Amendment of utmost importance is omission of Section 24 which dealt with the disability of a widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother, to succeed to the property in case of such widows remarriage. By the deletion of section 24 now these widows will become entitle to get their share even after remarriage. But this facility is available only to the categories of heirs stipulated therein and what about the condition of deceaseds widow, she will have to remain widow for ever to get succession in her husbands property otherwise she would lose her share. The unlucky widow has no right to lessen her sorrow and pain while the titular female heirs are in better position. Is it not violation of her right to life? Is it not against the principle of equality? Does it not promote discrimination with in gender itself? Another Amendment is, omission of Section 4(2) which provided that for the removal of doubts it is hereby, declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agriculture holdings or for the fixation of ceilings or for the devolution of tenancy right in respect of such holdings. The effect of such deletion being that the deeming fiction has ceased to exist and the Act will thus become applicable to such holdings also 25 and now the daughter will get equal share in the agricultural land. At a glance it seems a liberal step towards gender equality but its social and economical impact is likely to be a destructive one. Practically, the management of agricultural land is not possible for a stranger (daughters in laws or husband). Permanent residence and prevention of fragmentation of agricultural land are necessary conditions of farming. It may be possible that in lack of both two requirements partition and sell becomes a preferred choice which eventually attacks the jointness of family, society, social coherence, ruralcultural and traditional depositories, and finally affects the concept of V asudhava Kutumbakam26 . Section 30 of Hindu Succession Act, 1956 has been slightly modified by inserting her and thus recognizing her right to dispose-off property like men. This section allows any Hindu to dispose off his property including his share in the joint family property by will. This section can and has been used to disinherit women by testament. The Amendment, therefore, by itself does not offer much more to Hindu women but it has brought women at par with men by recognizing her right to dispose off the property to which she is capable of disposing off. It is submitted that this section should be amended and Hindus right to dispose off his property should be restricted only up to a maximum of 1/3 of his property as in Muslim law.
24 25

Benjamin Walker, Hindu World an Encyclopedic Survey of Hinduism. London, Vol. I, 1968, AT 290 S.A. Desai, Mullas Hindu Law. Vol.II, (New Delhi: Lexis Nexis, Butterworths 2007) at 300 26 The entire humanity is but one family.

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The implication of this Amendment may be far reaching because now women can become Karta of the joint family and thus it abolishes the age old rift between son and daughter on the issue of responsibility. It also undermines the concept of paraya dhan i.e. after marriage daughter belongs only to her husbands family. This change will increase self confidence, individual dignity, social status and also help in changing concept from entity of status to contract and in this way give her better bargaining power for herself in both parental and marital families. Another positive aspect of this Amendment is that the equal share of women in agricultural holdings etc. may help in eradicating poverty or risk of poverty not of women in particular but family in general too. It may also help in improving social, political and economic life of women and thus empower them. The negative aspect of this Amendment is that the women who own the land are benefitted by this but those who do not own either a dwelling house or a piece of land will not reap any benefit out of this Amendment. Hence the legal experts are in a dilemma: whether this Amendment for gender justice and gender equality is a myth or reality? The Amendment is not at all well throughout and can put women against each other in comparison to the other communities. Why do only Hindu women need equality in succession and why not Muslim women? 27 The exercise undertaken in the manner will only reinforce the system of separate and discriminatory personal laws. Again in Class I, female heirs on the part of the daughter have been added. They are son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased, daughter of a pre- deceased; daughter of a pre- deceased son of a pre- deceased daughter; daughter of a predeceased daughter of a pre- deceased son. Previously these female heirs were in Class II. It is notable that they have been substituted from Class II to Class I but their names still exist at their previous place resultantly they are heirs in both the categories. This inconsistency must be considered as a serious future problem. The issue of gender justice is not only a legal issue but social too, law can operate only through the medium of society 28 and any attempt for this purpose will not succeed without social support. No law can exist or achieve its purpose especially in Indian context without public support. The example of Dowry Prohibition Act, 1986 and Child Marriage Restraint Act, 1929 is considerable one. Concluding Observation: The women empowerment and gender justice wave is a common phenomenon of modern democratic world. It is receiving a high degree of popularit y in all the societies but it must be implemented keeping in view social concerns and with the help and support of each and every component of society. A common feature in a number of approaches, which have gained increasing popularity in this century, is the concern of law in relation to society and law is a reflection of peoples spirit. In this reference if we analyze the present Amendment Act, the interrelation between law and its social impact is quiet complex. Actually it doesnt support in vanishing gender inequality but probably will increase social disorganization. It is not much more helpful in advancement of womens position in the society but this right of daughter to inherit property is a remarkable and revolutionary step towards gender justice and empowerment and actual result, ramifications and repercussions are yet to go through the litmus test of social actions. One thing which is very much clear that effect of this Amendment Act will vary from fact

See generally: Werner M enski, Recent Developments in the Uniform Civil Code debates in India, 9 German Law Jounal, No.3,M arch 2008; In Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945, Chief Justice of India Y. V. Chandrachud observed that, "A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies"; In Sarla Mudgal v. Union of India AIR 1995 SC 153 Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage where it is lying since 1949. The Honble Justice referred to the codification o f the Hindu personal law and held that: "Where more than 80 percent of the citizens have already been brought under the cod ified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of the uniform civil code for all the citizens in the territory of India."; Again in a recent case i.e. John Vallamattom v. Union of India AIR 2003 SC 2902, the Constitutional Bench of the Apex Court held that "We would like to State that Article 44 provides that the State shall endeavor to secure for all citizens a uniform civil code throughout the territory of India It is a matter of great regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies." 28 M ontesquieu in LEspirit des Lois quoted in Dias, Jurisprudence. (New Delhi: Butterworths 1944) at 421.
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to fact and circumstances to circumstances. For the betterment of the Hindu Succession (Amendment) Act, 2005 and empowerment of women through this Act following measures may be suggested: To make changes made in section 4(2) a reality, it is suggested that state should also make necessary change in their respective land laws. Restriction should be imposed on the rights of parents to dispose of their self acquired property from disinheriting daughters and widows. Alternatively, Hindus right to dispose off his property should be restricted only up to a maximum of 1/3 of his property as in Muslim law. Changes made in Class I and Class II heirs should be revisited in order to remove the doubling of the heirs in both Classes. Efforts should be made to increase awareness of laws through legal literacy programs and education. Role of civil societies and NGOs should be recognized for better implementation of law. Law enforcement machineries should be sensitized about the better implementation of laws in letter and spirit. All other discriminatory laws should be removed to bring gender parity. Public interest lawyers should come forward for social and legal aid to women seeking to assert their rights. An all round change in mind set of both male and female is required. Similar change should also be made in Muslim personal laws and necessary amendment must be made by deleting section 2 of the Shariat Act, 1937.