Property rights amp; wrongs

FEBRUARY 6: In what has come to be regarded as a landmark judgment, the Supreme Court ruled that the children of a Hindu father born out o...

FEBRUARY 6: In what has come to be regarded as a landmark judgment, the Supreme Court ruled that the children of a Hindu father born out of an illegal second marriage, even while the first remains undissolved, are entitled to an equal share in his property as that of his legal wife and her children. The second 8220;wife8221;, however, cannot claim a similar right. By ruling thus, the judges rightly upheld the principle that children cannot be punished for the infidelity and indiscretions of their parents.

The judges took this view, despite the fact that entering a second marriage while the first exists clearly contravenes the provisions of Section 1 of the Hindu Marriage Act. Judgments like these may have the salutary effect of discouraging bigamous marriages since it could bring more pressure on those tempted to enter an illicit relationship to perceive the folly of their ways. Bigamy is a problem that cuts across all religious communities and continues to dog the lives of numerous women in the country. Not solong ago, the National Commission for Women NCW was asked to come up with suggestions to tackle this crime and one of the recommendations it put forward was to ask for the removal of a provision in the Criminal Procedure Code that bars the courts from taking cognisance of the offence unless it was the wife or her close relatives who filed the complaint. By doing so, the NCW argued, other interested parties like women8217;s organisations could play a more proactive role.

Family Law has always been a notoriously difficult terrain to negotiate. Although the country8217;s founding fathers did try to reform Hindu family law and bring it in conformity with the principles of social especially gender justice, they were met with a great deal of resistance. As a consequence, their project of reform was an incomplete one, with a great number of anomalies and disparities in the law continuing to exist to this day. The Hindu Succession Act of 1956 is a case in point. The Act does not recognise the coparcenary rights ofdaughters to ancestral property. Some state governments, like Andhra Pradesh under N.T. Rama Rao, have tried to address this by introducing local laws.

The Department of Women and Child would now like more states to follow suit and it has recently written to all state governments to ensure that daughters within joint families are given their property rights.

Indeed, equal access to property is a basic human right and this is precisely why inheritance laws assume the importance they do. Traditionally, inheritance rights have been inexorably linked to social perceptions of status or lack of it, which in turn translates into power or lack of it. In attempting to correct this, innovative interpretations of the law become crucially important. The recent Supreme Court judgment, by recognising the inheritance rights of those born out of wedlock, transcended as the judges themselves noted the traditional judicial view that the 8220;law leans in favour of legitimacy and frowns upon bastardy8221;.

Similarly, therehave been numerous judgments that have interpreted the law in more gender-sensitive terms. It is time therefore to consider amending the existing laws in the country to reflect the principles enunciated in such judgments, so that they can become universally binding.