~ By Saema Jamil

The history of Hindu Law reforms spans a period of fifteen years (1941 to 1956). A Hindu Law Committee was set up in 1941. It recommended the enactment of one comprehensive code that would cover all matters relating to marriage and succession. The recommendations led to the formation of the second Law Committee in 1944 which submitted its report in 1947 to the Federal Parliament. There were fiery debates in the Parliament[1] over the recommendations for almost a decade before four separate Acts could be passed in 1955-56.[2]

The enactment of the Acts was hailed as a major leap towards the liberation of women. However, the story behind the codification of Hindu Law is not that simple. Politics and appeasement of the conservatives played a major role in the enactment of the four Acts and the goal of liberating women and attaining gender equality took a back seat. The foremost concern of the Hindu reforms was to amalgamate the diverse Hindu society and to bring uniformity in the law for the purpose of unification of the nation.[3]

Thus, even though the Hindu personal reforms were portrayed to be radical, the provisions did not do complete justice to women. The final Acts that were passed were so different from the original provisions that were mooted that it can almost be said that the government had given up on the idea of a Hindu Code.[4] Despite this, it cannot be denied that the Hindu personal law reforms had a definite positive impact on women’s rights. It might not have been a leap but it was definitely a step towards achieving gender equality. And we have been taking steps in the same direction ever since. It is necessary to critically analyse the provisions of the Hindu Code to ensure that we do not waiver or get lost on the road to gender equality and finish successfully the journey that we have begun.

This article would discuss the provisions of three of the Acts of the Hindu Code: The Hindu Succession Act, The Hindu Marriage Act and The Hindu Minority and Guardianship Act.

  1. Hindu Succession Act

Hindu Law recognises a Hindu Joint Family as a separate entity. Before Hindu Succession Act, 1956, the joint family property was owned in the name of male coparceners[5] and on the death of one of the coparceners the property devolved to the remaining coparceners in accordance with the doctrine of survivorship. The females had no right over the joint family property except the right to claim maintenance.

The Hindu Succession Act, 1956 brought in two major changes: it conferred full ownership of property on Hindu women who prior to the Act had only a “limited estate” and it diluted the doctrine of survivorship by introducing the concept of “notional partition”. The former change has improved the condition of women considerably. The courts have interpreted the Section liberally giving benefit to women. Recently in Jupudy Pardha Sarathy v. Pentapati Rama Krishna & Ors[6], the Supreme Court held that a limited interest created in whatever form, in favour of a widow who was having a pre-existing right of maintenance becomes an absolute right by the operation of Section 14(1) of the Hindu Succession Act. This was a case where the husband of the widow had bequeathed a limited interest in some property to her. The court held that the interest was given to her in lieu of maintenance since the husband was aware that she had no means to maintain herself and therefore, Section 14 (1) would apply and she had become the full owner of the property after the 1956 Act was enacted. They gave a narrow meaning to Section 14 (2) to ensure that the woman gets the benefit of Section 14 (1) and upheld the spirit of the provision.

The second change introduced did not introduce gender parity though it did allow women more rights than they previously had. According to the concept of notional partition, on the death of a coparcener, his undivided share was deemed to be his separate property which devolved in accordance with inheritance laws. The rationale was to ensure that the daughters are not left with nothing. The position was still obviously inequitable as the daughter’s share was always considerably less than the male’s share.[7]

This discrimination was sought to be ended by the 2005 Amendment Act which made daughters coparceners and abolished the doctrine of survivorship.[8] The amendment has made the law more equitable but has led to absurd situations. For example, a daughter who was married already before the date of commencement of the 2005 Amendment Act would not be a member of her father’s joint family but by virtue of the amendment would become a member of the coparcenary which is a narrower institution than a joint family.[9] Similarly, a daughter who gets married after the 2005 Amendment Act comes into force would be a member of two joint families (one of her father and the other of her husband) and her daughter would be a member of three joint families (her father’s, her maternal grandfather’s and her husband’s)[10] and two coparcenaries[11]. This is a result of a fixation with the concept of Hindu Joint Family. It needs to be understood that the concept of Hindu Joint Family in its strict form cannot continue in the present times.

The entire Hindu family system has been unfair to women. It is the female who ceases to be a member of her father’s joint family and becomes a member of her husband’s joint family on marriage. Her identity (including her name) changes when she gets married. It is as if she is transferred from one family to another (usually for a consideration, i.e. dowry). But it is also necessary to acknowledge that society is dynamic and is responding to the problem of gender discrimination in the family with change. For example, many parents are not using surnames for their children and women have started retaining their own surnames or using both surnames (hers and her husband’s). This dynamism needs to continue and law and society needs to work in tandem.

Another problematic feature of the Act is the presence of separate provisions for succession in case of Hindu men and Hindu women dying intestate[12]. The property of Hindu males devolves upon his heirs irrespective of the source of the income but the property of Hindu females devolves according to the source of the income. This provision dilutes the effect of revolutionary provisions like Section 14 and makes it seem as if the woman is a temporary occupier of the property and that the property must be reverted back from where it was inherited[13] and that the woman has no identity of her own.[14]

It is thus clear, that the 2005 Amendment Act has not introduced true gender parity; nevertheless it cannot be denied that it was definitely a step in the direction of reducing the existing inequalities in society. The need of the hour is to recognise the biased nature of the law and to challenge it since lack of challenge and questioning puts a stop to dialogue and more importantly to change. Thus, while recognising and appreciating the positive impact of the 2005 Amendment Act, it is necessary to understand how it still does not guarantee equality between the two sexes.

  1. The Hindu Minority and Guardianship Act, 1956

Section 6 of the Hindu Minority and Guardianship Act, 1956 clearly states that the father is the natural guardian of a Hindu minor when the minor is a boy or an unmarried girl and the mother would be the natural guardian after the father. It relegates the mother to a lower position than the father. The Section flagrantly denies gender equality and is ultra vires the Indian Constitution by virtue of Articles 14 and 15. And yet, the provision has been declared constitutional by the Supreme Court of India.[15]

The Court read Section 6 along with Section 4 (c)[16] of the Hindu Minority and Guardianship Act and came to the conclusion that both parents have been recognised as the natural guardian of the minor. They further stated that the word “after” in Section 6 (a) of the Act does not disqualify the mother from acting as the guardian of the minor during the lifetime of the father. It interpreted the word “after” to mean “in the absence of” the father. The absence could be temporary or permanent and could be a result of total apathy of the father towards the child or any ailment of the father. According to the court, this interpretation would be in consonance with the intent of the legislature which was to make provisions keeping in mind the welfare of the minor and would help the provision to stand the test of constitutionality. The interpretation was in no way ingenious because the provision had already been read down around two decades before this judgment was pronounced.[17]

The Apex Court in Githa Hariharan case did not explicate how reading down Section 6 (a) of the Act made it constitutional. Even if the word “after” in the Section implies “in the absence of”, the Section stills violates the woman’s right to equality. The mother is recognised as the natural guardian of the minor only when the father, for whatever reasons, is not in a position to look after the welfare of the minor. The interpretation denies the woman equal rights as her partner. The law as well as the court assumes that the father is either more capable or better equipped to cater to the needs and welfare of the minor than the mother. Lamentably, the court while giving a decision against gender equality completely denied it was doing so. It violated the right to equality employing the language of equality.

The right thing to do would have been to declare the Section unconstitutional as it violated the fundamental right to equality. Instead the court after paying lip service to the constitutional mandate of ensuring gender equality held the Section constitutional giving specious reasons. This was worse than saying that the court would not interfere in personal laws because if it would have said so, it would have at least recognised that the Section was violative of the right to equality. However, by declaring that the Section is constitutional, if read down, the court did not even acknowledge the biased nature of the Section.

Also, Section 6 (a) of the Act reveals the influence of prescriptive gender behaviour and roles on the legislature. It makes the father the natural guardian of the minor in normal circumstances but stipulates that the custody of the minor till the age of five would ordinarily be with the mother. This is in line with the assumption that it is the duty of the mother to take care of the minor in his/her early years because she is better suited to the job while the father is entitled to manage the minor’s person and property and be the natural guardian.[18]

The entire scheme of Section 6 of the Hindu Minority and Guardianship Act, 1956 is problematic because it tends to validate the hypothesis that men and women are inherently different and therefore better suited for different roles.

Another point to note is that Section 7 of the Hindu Minority and Guardianship Act says that the natural guardian of an adopted son is the adoptive father and after him the adoptive mother. There is no corresponding Section saying the same thing about an adoptive daughter (possibly because Hindu Adoption and Minority Act was enacted after Hindu Minority and Guardianship Act and therefore at the time of enactment of the former Act daughters could not be adopted). But even without an express Section, the natural guardian of an adopted daughter is the adoptive father and after him the adoptive mother by virtue of Section 6 of the Hindu Minority and Guardianship Act read with Section 12 of the Hindu Adoption and Maintenance Act. Nevertheless just to bring in parity, it would be desirable if there is an explicit provision inserted to make it express.

  • The Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955 was indeed a progressive Act if we keep in mind the year of its enactment. It gives almost equal rights to the wife and the husband. The wife can file an application for restitution of conjugal rights and the husband can ask for maintenance from the wife in appropriate cases. However, this Act is a perfect example of how an equal law on paper can be applied in a discriminative manner in practice. For instance, what amounts to cruelty in the case of husbands and wives respectively differs according to the expected roles they are supposed to carry out in society. This conundrum of applying the same law differently can be rectified only by bringing about a change in the way people think and not by changing the law and it has to be conceded that the change is happening gradually.

There is one provision in the Hindu Marriage Act also which is blatantly discriminatory against women. The provision being referred to is Section 25 (3) of the Act which deals with permanent alimony and maintenance. It reads, “If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.” Thus, for the wife unchastity is the criterion for modifying or rescinding the order in her favour while for the husband it is sexual intercourse.

The term “chaste” is difficult to define and can be interpreted differently by different people according to their moral and ethical standards. Sexual intercourse, on the other hand, is something that positively needs to be shown and is difficult to prove. The Section admittedly prescribes different standards for men and women when it comes to a decision with respect to when an order for maintenance can be modified or rescinded. For instance, if a woman is out with a man at midnight, it might amount to being unchaste and the maintenance order might be modified but the situation is different in a man’s case.

Thus, the Hindu Marriage Act, despite being one of the most equal laws, still continues to hold on to archaic notions of chastity and purity of women and making their rights dependent on them.

Conclusion

Hindu law relating to family has evolved over the years and has become a lot more egalitarian than it was in the past and the attempt of this article was definitely not to overlook positive amendments in the law or progressive decisions given by the courts. The aim was to throw light on the things that still need change and that need to be relooked at from the perspective of gender equality, to argue that we cannot sit satisfied with what has been done and to iterate that we need to look forward and recognise what is still unfinished.

(This article appeared in India Foundation Journal, May-June 2016 issue.)

[1] The matter was debated in the Provisional Parliament between 1948 and 1951 and in the first Parliament of the newly independent India from 1952 to 1955.

[2]Flavia Agnes, Women and Law in India 78 (3d ed. 2006).

[3] See generally Archana Parashar, Women and Family Law Reform in India: Uniform Civil Code and Gender Equality 103 (1992); Flavia Agnes, Family Law, Volume 1, Family Laws and Constitutional Claims 20 (2011); Madhu Kishwar, Codified Hindu Law: Myth and Reality 2151 Vol. 29 No. 33 Economic and Political Weekly, August 13, 1994.

[4]Hukum Singh stated in a Parliamentary debate, “It is not the public opinion that has changed but…the government that has changed its attitude…This is not the original bill…The Hindu code has practically been given up by this government.” See Parliamentary Debates, House of the People, 7253-54 Vol V, 1954, Part II.

[5]In Hindu Law, within the Hindu Joint Family there is a smaller unit of persons known as the coparcenary which comprises of the senior most male member and his lineal male descendents up to three immediate generations. The concept of coparcenary is based on the son’s birth right in the joint family property.

[6] Civil Appeal Number 375 of 2007

[7] For example in a Hindu Joint Family consisting of a father and his two children (a son and a daughter), if the father dies there would be notional partition in which the son would get half the joint family property. The father’s half would then devolve to the son and the daughter equally. Thus, while the son would get three-fourth of the property, the daughter would only get one-fourth. See Poonam Pradhan Saxena, Succession Laws and Gender Justice in 286 Redefining Family Law in India: Essays in Honour of B. Sivaramayya (Archana Parashar & Amita Dhanda Eds. 2008).

[8]See Section 6 of Hindu Succession Act, 1955 after the Hindu Succession (Amendment) Act 2005.

[9]Poonam Pradhan Saxena, Supra Note 7 at 288

[10]Id. At 288

[11] This confusion could have been easily done away with by making a provision which provided that the marriage of a daughter would result in a partition with respect to her and she would receive her share in the coparcenary property.

[12]Sections 8 to 13 of the Hindu Succession Act, 1956 give the rules for devolution of property of Hindu males dying intestate while Sections 15 and 16 provide rules for devolution of property of Hindu females dying intestate.

[13]Supra Note 7, pp. 289. The doctrine of reversion has been done away with by the introduction of Section 14 in the Hindu Marriage Act but the essence of the doctrine has been retained by providing separate rules for devolution of property of Hindu females when it is inherited from her parents or husband or in-laws.

[14] This is also clear from the fact that before marriage a woman is referred to as d/o and after marriage she is referred to as w/o. She is never recognised as an autonomous individual.

[15]See Ms. Githa Hariharan and Anr. v. Reserve Bank of India and Anr. (1999) 2 SCC 228.

[16]Section 4 (c) of the Hindu Minority and Guardianship Act defines the term “natural guardian” as meaning any of the guardians mentioned in Section 6 of the same Act.

[17] In Jijabai Vithalrao Gajre v. Pathankhan & Ors 1971 SCR (2) 1, the court held that when the father was not taking any interest in the affairs of the minor daughter and only the mother was looking after the minor daughter’s interest and managing her property, it would be proper to consider the mother as the natural guardian of the minor daughter.

[18]The mother is seen as a better care taker because she is expected to be more loving and caring while the father is presumed to make more rational and reasonable decisions for the welfare of the minor. The reasoning is similar to the arguments made by cultural feminists.

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