The Constitutional mandate set out as Directive Principles of the Constitution defines the agenda for state action in the area of legislation and policy. In the last six decades, some of these stated goals have been transformed into fundamental rights through judicial interpretation (protection of environment, right to education) while others have been realized through legislation (empowerment of Village Panchayat). But one directive principle that has been constantly ignored by the state despite being vigorously debated, is the enactment of a uniform civil code. The Constitutional guarantee of equality for all irrespective of gender or religion is conveniently overlooked when it comes to the inequality perpetuated on women on the basis of religion under personal laws. This discrimination manifests itself in the most glaring form in the area of succession law which fragments the right of Indian women to property on the basis of their religion.
Under Hindu Succession Act (which also governs Buddhists, Jains and Sikhs), prior to statutory amendment of 2005, only sons could acquire a share in the joint family property by birth. The daughters enjoyed no such right except in the states of Maharashtra, Tamil Nadu, Karnataka and Andhra Pradesh. So on the partition of the Joint Family the persons entitled to a share in the property were the father, mother and son. The daughter could only inherit her father’s 1/3rd share in the Joint Family property after his death. Even in this 1/3rd share of the father, the son, mother and other Class I heirs were entitled to their share along with the daughter. The 2005 amendment redressed this anomaly by making the daughter a coparcener in the joint family property i.e. she now acquires a share in the ancestral property equal to that of the son by birth. A partition in the family would now mean equal division of property amongst the father, mother, son and daughter. The amended law has also brought agricultural land within the folds of the Hindu Succession Act succession to which till now was being governed by the gender discriminatory local tenancy laws. The result is that today a Hindu woman has her own independent means of sustenance for which she does not need to depend on the will of the father. Her share in the property cannot be alienated by anyone. Even if the father wills away his share in the joint family property the daughter's share remains intact. Being a coparcener she can also claim partition of the joint family property including the dwelling house or alienate her share of the property. What is even more interesting is that the entity of Joint Family, which was seen as detrimental to women’s right has resulted in granting of an unalienable right in the property to the Hindu women which is not available to women of any other religion. Kerala model which has abolished the Joint Family altogether, is actually detrimental to women as on the abolition of Joint Family the father becomes absolute owner of the property and can dispose it by will to any person of his choice.
Before we move on to the other systems of law it is important to understand that the concept of Joint Family is unique to Hindu Law where the coparceners acquire an interest in the property by birth. This is not so under other personal laws. Under the Islamic, Christian and Parsi law the father is the absolute owner of the property and the property is inherited by the heirs on the death of the father. So a father can alienate the property as an absolute owner and deprive the heirs of inheritance. Though under Muslim Law the father can only will 1/3rd share of the property there is nothing to prevent him from gifting the entire property to anyone he chooses.
It is interesting to note in this context that The Shariat Act 1937 was introduced to uplift the status of Muslim women as the customary law was very discriminatory towards women. The statement of objects and reasons of the Shariat Act stated that "The status of Muslim women under the so-called Customary Law is simply disgraceful. All the Muslim Women Organisations have therefore condemned the Customary Law as it adversely affects their rights. They demand that the Muslim Personal Law (Shariat) should be made applicable to them.” As Islam recognised the right of women to property the customary law was sought to be replaced by Islamic law. Thus Muslim women in India have enjoyed absolute right to property under the Islamic law since 1937 while the Hindu women had to wait till 1956 to become absolute owners of property. Under the Hanafi School of Law which governs most Muslims in India, a daughter’s share in the father’s property on his death is half of that of the son. Similarly the wife is entitled to 1/8th of the property of the deceased husband which increases to 1/4th in the absence of lineal descendants. This division which was revolutionary when it was propounded has become unequal with the changed notion of equality. Moreover, agricultural land has been kept outside the Shariat Act 1937 as a result of which succession to agricultural lands continue to be governed by the discriminatory local tenancy laws.
The statement of objects and reasons of the Hindu Succession Amendment Act 2005 states that "The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution." If this is the perception of the legislature on inequality of Hindu women under the personal law then what is it that prevents it from applying the same standard of equality to Muslim women.
Christians and Parsis are governed by the Indian Succession Act and do observe the principle of gender equality in succession. Daughters and sons are treated equally. But the father being the absolute owner of the property can will away the entire property to anyone without restriction.
The idea of justice and equality is not constant but evolves with the advancement of society. This is an accepted legal principle on the basis of which many laws though perfectly valid when enacted, have been stuck down as unconstitutional in the changed milieu. It is due to the changed perception of gender equality that Islamic law which was the first system of law to recognise the right of women in property has become unequal with the changing times. In direct contrast, the Hindu law, the most archaic in terms of women’s right has been completely reshaped with successive legislations and has put the Hindu women at the top in the hierarchy of property rights.
The reluctance of the State to evolve a gender just uniform civil code arises out of many compulsions and it is also prudent on part of the Judiciary to hold that they cannot interfere in matters of policy by directing the enactment of a uniform civil code. However, the course which is definitely open to the Courts, is to strike down a law which has become discriminatory, arbitrary and irrational law when judged against the current standard of equality, as unconstitutional when the occasion so arises.
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Aparajita is a lawyer practicing in the Supreme Court of India