It was long felt need to bring about economic emancipation of women in order to ensure genuine equality. Both Nehru and Gandhi who lead the freedom struggle from the forefront realised that the economic disadvantage of women was at the root indescribable inequalities. But when the constitution was framed no significant advantage was conferred on women.
Under the influence of Western democratic ethos in the Indian Leadership continued “sameness treatment” which cannot answer the maladies of the persons who are inherently unequal. The much eulogised means of secularism and the commandment of directive policy, namely the Uniform Civil Code were jettisoned and sacrificed at the altar of religion based personal laws governing the familiar status of the Indians and thereby dividing and sub-dividing the Indians based on religious affiliation.
This has become major resource of discrimination against women and impediment for their development. In spite of Rau Committee’s recommendations that the right by birth shall be abolished and Mitakshara can be converted into Dayabhaga, the Hindu Succession Act of 1956 was passed perpetuating Mitakshara Law.
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Section 6 of the pre-existing Hindu Succession Act provided that when a male Hindu dies after the commencement of the Act, having an interest in Mitakshara coparcener property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary.
However, where the deceased has left behind any female relative in class I of the schedule or a male relative who claims through a female relative. Then in such cases his interest in property shall devolve by testamentary or intestate succession as the case may be and not by survivorship.
Section 4 of the pre-existing Act, provided that the Act was not applicable in relation to any law for time being in force providing for the prevention of fragmentation of agricultural holdings or for fixation of ceiling or for devolution of tenancy rights in respect of such property.
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Section 23 of the Act, placed restrictions on women to claim her property by partition of a dwelling house until the male heirs choose to divide their respective shares. Under s. 24 a remarried woman shall not succeed to the properties of deceased husband.
All these provisions caused hardship to women to have economic independence. In order to extend equitable treatment to women some of the States tried to ameliorate the status of daughters prospectively by conferring on her the birth right on par with the son with reference to coparcener property and to claim survivorship.
The State of Andhra Pradesh was the first State to implement the same followed by Tamil Nadu, Karnataka and Maharashtra. Amendment Acts of all these States are on the similar lines. Kerala State went to the extent of passing an Act the Kerala Joint Hindu Family System (Abolition) Act of 1975. Where it is stated that after the commencement of the Act a right to claim any interest in any property of an ancestor during his or her life time founded on the mere fact that the claimant was born in the family of the ancestor shall not be recognised.
This was a severe jolt on Mitakshara and Marumakattayam Law in Kerala. The Kerala Act also provided that the Mitakshara coparcener will hold the property as tenants-in- common from the date of the commencing of the Act, as if a partition has already taken place on holding their property separately.
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Though these Acts were laudable and considerably altered the status of daughters, they have certain limitations. Because of these Acts, fraudulent partitions, supposedly made before the enactment have taken place. These Acts also suffered from the vice of discrimination.
Firstly, they maintained dichotomy of unmarried daughters and married daughters where unmarried daughters were considered equivalent to sons. Secondly, when only the daughters are considered as deemed coparceners and property devolved on them in terms of section 6 of Hindu Succession Act proportionately, the share of other female relatives under class 1 heirs is reduced.
With reference to Kerala Act, while the Act tried to abolish joint family system, there is a lurking danger of excluding the daughter by testamentary disposition.
The State amendments mitigated the rigour of Mitakshara law and certainly they have taken major steps in the right direction towards emancipation and empowerment of women. However, these laws cover only few States not applied uniformly in the Country. Initially it was thought that other States also may follow the models of Andhra, Karnataka and Maharashtra.
In fact, the Department of Women and Child Development had required various States and Union Territories to adopt similar laws. While so, the Law Commission on its own started deliberations and elicited opinions in order to arrive at a Uniform Hindu Succession Law. The Law Commission ensured widest possible discussions and suggestions through a well drafted questionnaire.
The questionnaire inter alia covered the major issues: (1) whether to grant coparcenary rights to the daughters on par with sons; (2) whether to abolish totally the right by birth given to males; (3) whether daughter may be allowed; whether daughters be allowed full right of residence in their parental dwelling house and partition whenever required; (4) Whether to restrict bequeathing the property by way of testamentary disposition to 1V2 or 1V3 of the total property. After considering the opinions of the people the Commission in its 174th Reports has recommended a compromise formula.
The Commission did not recommend the adoption of Kerala Model as it has the limitation of making only male coparceners as tenants-in-common on the day of abolition of joint family. The Commission favoured at the first instance to make the daughters coparceners who can hold the property as tenants-in-common.
The Commission also wanted to do away with the distinction of married daughters and unmarried daughters as envisaged in the Legislation of Andhra Pradesh. It has recommended the abrogation of the doctrine of pious obligation and deletion of s. 23. The Commission was not inclined to place the restrictions on the right of the Hindu deceased to will away his property.