Law panel proposes equal share in ancestral property for Hindu women

The Commission has also said that that there should ideally be no discrimination between daughters who are married before the new Act comes into force and those who are married after. Currently this discrimination exists in the Andhra Act. But the report says that on “further deliberation it was decided to retain this distinction as it would cause a lot of heartburn as married daughters normally receive substantial gifts at the time of their marriage though these are not commensurate with the son’s share. But a woman who gets married after the Act has come into force will be entitled to her share in the coparcenary property as she will become a coparcener on the date the Act comes into force.”

Another provision of the Bill says the share of a dead son or daughter shall automatically be allotted to the surviving child. The Bill also says that any property which a female Hindu becomes entitled to by virtue of inheritance will be regarded as property she can dispose of. There is also a provision of “interest to devolve by survivorship on death” which means that when a female Hindu having an interest in a property dies after the commencement of the new Act, her interest in the property shall devolve upon the surviving members of the coparcenary and not in accordance with the new Act.

The changes will have far-reaching social and legal implications for Hindu society. Currently, women can claim an equal share only in their parents’ self-acquired property and demand dwelling rights in their parental house in the event of their divorce, widowhood or desertion by husband.

While an equal share in their ancestral movable and immovable property, including the family business, would result in their economic empowerment, hopefully improving the lot of millions of victims of gender discrimination, the development could also lead to increased family conflicts, especially where established family businesses are concerned.

Also, the concept of a Hindu joint family as we understand it now will become obsolete. Under the new provision, the `karta’ or the eldest male member will no longer be empowered to take all decisions concerning family business or property since the sons and daughters will hold an equal share and anyone can ask for a partition.

Under the proposed amendment, if the eldest child happens to be a daughter, she will be entitled to act as a `karta’ of her parental family and discharge the `pious obligations’, including marrying off the unmarried children, paying off the parents’ debt etc, hitherto the prerogative of only the eldest male member.

Maintaining that the change would discourage the practice of dowry while bringing about equality before law, Justice Leila Seth, former Chief Justice of the Delhi High Court and a member of the Commission, says since the girl will be the equal inheritor of her ancestral property, the in-laws may not insist on dowry.

Incidentally, the change is sought only in the `Mitakshara’ of the joint Hindu family that is prevalent mostly in the north Indian states and Bihar. The other system prevalent in eastern India — the Dyalbhaga system — already provides for an equal share for daughters in ancestral property. “And that probably explains why the evil of dowry is more prevalent in north India and Bihar,” Justice Seth says.

But does the new proposal mean that a woman will now have a double advantage of claiming an equal share in ancestral property and a due share in the matrimonial property as well in the event of the husband’s death? Justice Seth says the double advantage would apply to both the partners as the widower will also be beneficiary of his share in his parental/ancestral property and the one left behind by the wife.

Advocate L.K. Garg, who is handling several cases of familial property disputes, however, feels that going by the falling trust between family members that is resulting in the disintegration of both joint and nuclear families, the development could only provide another cause for dispute.

Says he:“We often come across cases wherein the husband, in-laws or even grown up children of a women force her to demand a share in her parents’ self-acquired property on one pretext or the other. If the property happens to be a family business set up by the grandfather or his father, which brother would like to go in for a partition?”

He cites several court cases wherein the women, though married in well to do families, demanded a partition of their meagre parental property either under the influence of their matrimonial family or due to conflict with their brothers.

Justice Seth, however, dismisses the apprehensions of large-scale misuse of the new law, saying that once attitudes changed and the men got reconciled to the fact that they would have to share everything with their sisters as much as their brothers, the conflicts will be resolved.