The Delhi High Court recently ruled that by virtue of seniority, the eldest daughter of a Hindu undivided family can become its karta. This is seen as a landmark judgment for women’s rights in the country
By Sucheta Dasgupta
The subordinate position of a Hindu woman within her own family has been Indian feminism’s final frontier. On December 22, 2015, the Delhi High Court delivered a landmark verdict which ruled that the eldest female member of a Hindu undivided family can be its “karta”, thus according her freedom, esteem and authority within her family framework, community and society. “If a male member of a Hindu Undivided Family (HUF), by virtue of his being the first born eldest, can be a karta, so can a female member. The court finds no restriction in law preventing the eldest female coparcener of an HUF, from being its karta,” Justice Najmi Waziri said in his judgment.
The karta or head of a Hindu family enjoys a position superior to that of other members and has full authority to manage property, rituals and other crucial affairs of the family. These include taking decisions on sale and purchase of family assets, mutation of property, etc.
The ruling came on a suit filed by the eldest daughter of a business family residing on University Road in north Delhi. The family consisted of four brothers, with the surviving eldest shouldering the responsibility of karta. With the passing away of all the brothers , the eldest son of a younger brother declared himself the next karta. He was challenged by the (married) daughter of the eldest brother who is also the senior-most member of the family coparcenary.
A parcener is a person who shares with others in the inheritance of an undivided estate or in the rights to it. A coparcenary is the group of people sharing this heirship.
Historic amendment
The court has based its judgment on the historic amendments to the Hindu Succession Act in 2005, passed by the UPA government, which give equal share of property to daughters and thereby, levels the playing field for women. The newly-introduced Section 6 of the Act does not place any restriction on women becoming the karta, it has said.
Noting that it was “rather odd” that following the amendments, “while females would have equal rights of inheritance in an HUF property, this right could nonetheless be curtailed when it comes to the management of the same”, Justice Waziri said. He added: “[Section 6 of the Hindu Succession (Amendment) Act] gives equal rights of inheritance to Hindu males and females, its objective is to recognize the rights of female Hindus and to enhance their rights to equality apropos succession. Therefore, courts would be extremely vigilant in any endeavor to curtail or fetter statutory guarantee of enhancement of their rights. Now that this disqualification has been removed by the 2005 amendment, there is no reason why Hindu women should be denied the position of a karta.”
Since the judgment devolved headship rights to the daughter and the heirs of a daughter, irrespective of her marital status, it was a further step to her empowerment, as women’s position within the Hindu family is often believed to be weakened by marriage, with Hindu society, by and large, following the system of patrilineal descent.
As per the old custom, a HUF coparcenary comprised the son, grandson, uncle and nephew, with the line of succession devolving from the first to the next member. Now it also consists of daughters, granddaughters, aunts and nieces; the criteria of deciding headship remaining the same— category of kinship and order of birth.
Spot of History
Hindu inheritance and succession of ownership and managerial rights to family property have been traditionally governed by various schools of law. These are:
1. The Mitakshara school of law: It has the Madras, Maharashtra, Benaras and Mithila sub-schools. The Maharashtra and Mithila sub-schools have three more variants—the Vyavakara, Mayukha and Nimaya Sindhu schools.
2. The Dayabhaga school of law: It is mostly followed in West Bengal and Assam.
3. The Marumakkattayam and Aliyasantana school of law: It is the only Hindu matrilineal system of descent and inheritance followed in parts of Kerala.
During the British rule of India, three legislations were passed to decide property matters within Hindu families.
1. Hindu Inheritance Act, 1928
2. Hindu Law of Act, 1929
3. Hindu Amendment Right to Property Act, 1937
The move for equality in matters of succession and rights to family property is not limited to commoners or even Indians alone. In 2011, Commonwealth leaders agreed to change succession laws in the United Kingdom. The Succession to the Crown Act 2013 replaced male-preference primogeniture (estate inheritance right) with absolute primogeniture so that boys and girls will now have equal right to the British throne. Since 2000, demands for gender-equal rights to accession to the throne have been gaining momentum in Japan as well.
A partial victory
“This is a very important ruling. When men have always been the karta of the family as a matter of birthright, why not women? Now women, too, can have control over family assets and a say in family matters,” said advocate Mala Goel, counsel for the plaintiff.
Yet, Hindu law still does not accord headship and successorship rights to women who have married into the family. The new Hindu Succession Act gives equal right to property to the widow of a deceased owner and there are various precedents of courts granting property managing rights to mothers, grandmothers and stepmothers who have gone on to become the de facto (but not the de jure) karta of the family (Pandurang Dahake vs Pandurang Gorle, Rakhmabai vs Sitabai, Hunooman-persaud’s case). But the new ruling “only takes into account the position of daughters and their heirs and not that of the wife or the daughter-in-law”, said Goel. “A widow is not a part of the coparcenary.” Which makes one wonder: Is the patrilineal nature of the family an obstacle to equal rights for women and men? “Well, as the saying goes, one foot cannot stand on two boats,” said Ashish Davessar, a lawyer, putting matters in perspective.
Will this verdict, which sets a precedent for courts all over India dealing with successorship litigation, do its bit to enforce the Dowry Prohibition Act 1961, by way of reducing demands for dowry? By the same logic, now that women are equal inheritors and managers of assets and properties, will this also lead to doing away of the provisions for maintenance and alimony for women divorcees? Goel believes these are all sepa-rate matters and “indeed this need not be the case”.
“I welcome this verdict. This verdict and the Bombay High Court verdict are landmark verdicts and will go a long way in empowering women in this country, both financially and morally,” said Dr Pam Rajput, former Panjab University professor who had in 2012-14 chaired a high-level committee to study the status of women in India and submit policy recommendations to the ministry of woman and child development.
Rajput is all praise for the judgment of the High Court of Bombay that clarified that the new Hindu Succession Act would not be applicable prospectively, only to those daughters born after September 2005, but retrospectively, to all women. The Supreme Court, however, later ruled that it was imperative for the father to have been alive when this law came into force in 2005 for the daughter to have equal property and coparcenary rights.
Unfinished business
All things considered, it can, perhaps, be safe to say that, this landmark ruling notwithstanding, it is still unfinished business for sex egalitarians. The 18th Law Commission in 2008 suggested that Section 15 of the Hindu Succession Act 1956 be amended so that “in case a female Hindu dies intestate (without having made a will) leaving her self-acquired property with no heirs, the property should devolve on her husband’s heirs and also on the heirs of her parental side”. This would surely be an apt sequel to the 2005 amendments, also effected at the instance of the Law Commission, journalist and author Manoj Mitta told India Legal.
Mitta said that despite the avowedly secular nature of the Special Marriage Act, 1954, it contains some anti-conversion clauses in Sections 19 and 21A. According to them, any marriage of a Hindu belonging to an undivided family to a Muslim or a Christian (though not to another Hindu or a Buddhist, Sikh or Jain) shall be deemed to result in his or her “severance from such family”. Thus, there is a statutory sanction to disinheriting from the ancestral wealth any Hindu who wishes to marry into some communities (without converting the spouse or while choosing to convert their faith themselves).
And then there is the “mother of all battles” still waiting to be won. In 1999, author Githa Hariharan challenged the validity of the stipulation present in Section 6 of the Hindu Minority and Guardianship Act 1956 which, instead of treating the father and the mother alike, clearly establishes a hierarchy saying that, in case of “legitimate children”, the natural guardian of a Hindu minor is “the father, and after him, the mother”.
Though it did not strike down any part of Section 6, the Supreme Court sought to lessen its severity. It held that the term “after” in Section 6 should not be literally interpreted to mean “after the lifetime of the father” but instead be taken to mean “in the absence of the father”. The “absence” could extend to situations where the father was rendered unfit due to illness, was apathetic to the child or was even away for a long time. Hariharan’s challenge had been purely on the principle of equality and she failed to win that battle.
The quest for reform continues.