Women's Right to Property in India
Several legal reforms have taken place since independence in India, including on equal share of daughters to property. Yet equal status remains illusive .Establishment of laws and bringing practices in conformity thereto is necessarily a long drawn out process. The government, the legislature, the judiciary, the media and civil society has to perform their roles, each in their own areas of competence and in a concerted manner for the process to be speedy and effective.
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"...It is not easy to eradicate deep seated cultural values or to alter traditions that perpetuate discrimination. It is fashionable to denigrate the role of law reform in bringing about social change. Obviously law, by itself, may not be enough. Law is only an instrument. It must be effectively used. And this effective use depends as much on a supportive judiciary as on the social will to change. An active social reform movement, if accompanied by legal reform, properly enforced, can transform society." Historical perspective
If it's a matter of property, then legally male dominate the society. There are numerous laws that say that there should be no discrimination between the sexes, but in reality none are effective enough to actually bring about a revolution; a change in society. According to the Indian Succession Act, 1925, everyone is entitled to equal inheritance, except Hindus, Sikhs, Jains, Buddhists and Muslims. Under this act, the daughter of a person dying intestate would be entitled only to one-fourth of the son's share, or Rs. 5,000/- (Sthree Dhan), whichever is lesser. The Travancore High Court, however, held that the Indian Succession Act would have no application to the Christian women of the Travancore State in view of the Travancore Christian Succession Act, 1916. Under the State Act, the daughter of a person dying intestate would be entitled only to one-fourth of the son's share or Rs. 5,000/- (Sthree Dhana) whichever is lesser. The application of the State Act was challenged in the Supreme Court in the famous Mary Roy's Case (Mary Roy Vs. State of Kerala, AIR 1986 SC 1011; 1986(2) SCC 209). The Court ruled that the Cochin and Travancore Christian Succession Acts had ceased to be operative on the Reorganization of States and that automatically made the Indian Succession Act applicable to all Kerala Christians bestowing on them equal inheritance rights. The Hindu Enactment Act, 1956, established that women have equal inheritance rights, as men; and it abolished life estate of female heirs. However, this law could not do the needful as there was another law, the Mitakshara coparcenaries (Hindu Law) that overruled the previous law.
Recommendations of Women Committees/Commissions on Status of Women in India In 1975 a committee on the status of women was constituted by the Government of India, to evaluate the current legal provisions in regards to women , so that that a women is not left completely destitute. Some important recommendations which were made by this committee were that legislative measures should be taken to bring Christian women of Kerala under the Indian Succession Act. The Indian Succession Act should be extended to Goa and Pondicherry respectively to undo the relegation of widows to fourth position in matters of succession and to undo the inferior position to which Christian women are relegated by not being considered as full owners of property. In regards to succession to property among Hindus, the right by birth should be abolished and the Mitakshara co-parcenary should be converted into Dayabhaga (the retention of Mitakshara co-parcenary perpetuates inequality between sons and daughters as only males can be co-parceners, and inheritance is only through the male line). The exception provided in Section 4 (2) of the Hindu Succession Act relating to devolution of tenancies should be abolished (this provision, as it stands now excludes devolution of tenancy rights under various State Laws from the scope of the Act). The discrimination between married and unmarried daughters regarding right of inheritance of dwelling houses caused under Section 23 of the Hindu Succession Act should be removed.
In Matrimonial property, legal recognition should be given to the economic value of the contribution made by the wife through household work for purposes of determining ownership of matrimonial property, instead of continuing the archaic test of actual financial contribution; On divorce or separation, the wife should be entitled to at least one-third of the assets acquired at the time of and during the marriage. The National Commission for Women had also recommended certain amendments in laws related to women and property. Under Indian Succession Act, 1925 it suggested that Sections 15 and 16 of the Act, should be amended, removing mandatory linkage of wife's domicile with that of the husband. Further, it recommended that appointment of testamentary guardian may be the right of both the parents acting concurrently. Widows should be granted letter of administration to deal with the Estate of the deceased husband unless excluded by the Court for sufficient reasons (Section 219 (a)).and application made by the widow to be disposed of within a year (Section 218 (2).In Hindu Succession Act, 1956 It suggested that equal distribution should be made of not only separate or self acquired properties of the diseased male, but also of undivided interests in co-parcenary property. Daughter of a co-parcener in a Hindu joint family governed by Mitakshara Law to be co-parcener by birth in her own right in the same manner as her son; she should have right of claim by survivorship and to have same liabilities and disabilities as a son ;further co-parcenary property to be divided and allotted in equal share. The right of any heir to claim partition of a dwelling house to arise only after settlement of widowed mother's rights is disposed with in case the deceased male is intestate.
Myth Earlier, the law use to put the male heirs on a higher footing by providing that they shall inherit an additional independent share in co-parcenary property over and above what they inherit equally with female heirs; the very concept of co-parcenary was that of "an exclusive male membership club" .Now this concept has` been abolished . But surprisingly, even today, even after the new law, co-parcenary remains a primary entitlement of males; no doubt law provides for equal division of share between all heirs, male and female on the death of a male co-parcener, but in practice the scene is totally different .Legally, Intestate self acquired property devolves equally between male and female heirs; but , even toady female heirs are asked to relinquish their share by making relinquishment deeds on their signature and are commonly submitted in courts. If the intestate property includes a dwelling house, the female heirs have no right to partition until the male heirs choose to divide their respective shares. If a Hindu female dies intestate, her property devolves first to husband's heirs, then to husband's father's heirs and finally only to mother's heirs; thus the intestate Hindu female property is kept within the husband's lien. Conclusion To actually achieve equal inheritance for all, the laws have been amended. In regard to succession to property among Hindus, the right by birth has been abolished and the Mitakshara School co-parcenary of Hindu Law has been converted into Dayabhaga School that means equal distribution of not only separate or self acquired properties of the diseased male, but also of undivided interests in coparcenary property. Daughter of a coparcener in a Hindu joint family governed by Mitakshara Law now is coparcener by birth in her own right in the same manner as a son; she has right of claim by survivorship and has same liabilities and disabilities as a son; now co-parcenary property to be divided and allotted in equal share. The theoretical reforms so far have not been adequate to give all Indian women a right to property on the same footing and terms as men. It varies with region and religion. Even where law has given a right, conventions and practices do not recognize them. Women themselves relinquish their rights. Women, as daughters, wives, daughters-in-law, mothers or sisters tend to lose out and often suffer deprivation. This further gets accentuated when they lose the security of the family, as single women, divorced/separated or widowed. Social awareness of the rights under law, attitudes to adhere to it and a mindset to change law and practice to ensure social justice is therefore urgent.
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วันอังคารที่ 27 ธันวาคม พ.ศ. 2554
Women's Right to Property in India
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