Coparcenary System and Gender Discrimination: A Study with Recent Developments

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INTRODUCTION

Women’s right to vote and to own property have been widely discussed and deliberated upon by the western world because of the emergence of the feminism movement in Europe and America. It was a realization to the patriarchal society, how they have subordinated and discriminated against almost an entire half of the population in every aspect of life. The second wave of feminism brought to people’s attention the private sphere of society, the family. This is the earliest record of the society being held accountable of the discimination and cruelty against women in their most personal areas of life. India, post independence and even before, realised the need for empowering women against the age old practices and stereotypes that was not just a result of colonisation as many would claim, but was also precipitated through the very culture we stand to protect.

One such example is the Classical Hindu Law and its stand on women’s position in the society. Manuscripts starting from Vedas and Manusmriti to Arthashastra projects conflicting views on the said matter. However, the practices that were  pre-independence, speak of a grossly discriminatory system for women. This calls for a very elaborate and extensive discussion, however, this article will only focus on what our personal law says about women with respect to their position in family and particularly their right to own property.

Hinduism is the most intricate and complex system that does not follow just one text and therefore, is prone to conflicts and ambiguity which is also the case when it comes to Hindu Joint Family and inheritance. Today, the codified Hindu law follows two major schools, which arise from two major commentaries on the Yajnavalkya smriti (mostly dealing in Hindu succession laws), ie. Mitakshara (by Vijananeswara) and Dayabhaga (by Jimutvahana). For the purpose of simplicity we will mostly be discussing the Mitakshara system, which is followed by the largest population of Hindus. It clearly and adamantly excludes women from all positions of decision making, predominantly as a property holder. The critics have even gone to the extent of commenting on the inherent quality of discrimination of women and ostracisation of certain groups of people from general activities, that it becomes imperative to question the very validity of these personal laws in a country that stands for equality and freedom.[1]

The article aims to trace the history of the coparcenary system (which is unique to the Hindu succession laws) and to examine the position of women in the joint family system as per Hindu personal laws. It also addresses the legal developments that have taken place in redefining women’s right of inheritance, fulfilling the constitutional promise of equality and laws for the same. Although  it can go a long way in empowering women.

COPARCENARY AS A CONCEPT

India is home to one of the oldest civilisations of the world, remnants of which are preserved in texts that are now predominantly followed under Hinduism as a religion. After independence, in order to preserve this ancient culture, the practices and beliefs are codified with the help of certain important texts (the Smritis and the Shrutis). In Classical Hindu law, the most primary unit of society is not the individual but the family, which today is termed as a Hindu Joint Family. It consists of all male members who are the descendants of a common male ancestor together with their wives or widows and unmarried daughters.[2] This Hindu family is headed by a male patriarch who is called the Karta of the family and is responsible for making all essential decisions in matters pertaining to financial distribution within the family. He enjoys unparalleled control over all other members and obviously cannot be a woman, even if she is the oldest surviving member of the family.

The ancient system treated the property acquired by the members of the family as a joint property of the family. Only later, the concept of separate property came into existence.[3] Within this unit, comes the concept of coparcenary. This group within the Hindu Joint Family comprises only the male members of the family, starting from the patriarch and continuous three generations after him. This concept grew from a spiritual ground wherein this group of people are taken to be the advisors for the Karta and are to offer funeral services to the Karta at the time of his death for his spiritual progress afterlife (as per Hindu beliefs). This service can only be rendered by a Hindu male and therefore, women are excluded from this coparcenary privilege altogether.

This institution is now restricted to its role in property and inheritance laws. Under the Mitakshara system, a joint property is devolved amongst these coparceners through survivorship. In other words, this four generations of male members starting from the common patriarch has an interest in the joint property of the family by birth. They also have the right to demand partition of that property and the Karta has exclusive rights over its distribution. Later, with the introduction of the concept of nuclear family, a person’s property is also divided between joint or ancestral or coparcenary and separate property. Hindu women are included as heirs of this separate property, which recognises inheritance through succession.[4]

WOMEN’S POSITION

The Sanskrit saying “Na stri swatantramarhati-‘Swatantram Na Kachit Striyah” meant that women are not capable of an independent existence and are in need of their fathers or husbands or brothers to look after them. This was the rule of Hindu texts which, though, glorifies many goddesses in their scriptures, treat mortal women as less than a shudra, the lowest varna of Hindu society.[5] This further goes on to imply that women in that time had no right to inheritance. A woman is only allowed to own a small share of property called the Streedhan which was given to her by her father at the time of marriage and was also limited to the extent of her personal enjoyment, which means that after her death this property was not suppose to pass onto her heirs but rather her husband (if alive) or his heirs. Moreover, the Mitakshara system did not recognise the widow’s right to inherit property after her husband’s death as her heir. This denial of women’s share in property led to more problems than just financial independence. Due to the importance of having a male member for inheritance, pressure on women increased many folds. Bigamy, female infanticide, forced sexual intercourse, wife abandonment, etc. became accepted practices, all because the wife could not produce a male heir.[6] This is extended even when there are only female members in the household.

Women though not coparceners, are still able to introduce male members through adoption. Only when it is not possible for any female members to add a male member to the family, the entire joint family comes to an end. A daughter, when widowed and is abandoned by her husband’s family will become a part of her father’s joint family but her children will remain the part of her husband’s family tree, and she will only have right to maintenance.[7] Widows and unmarried daughters as members of the joint family have the right to maintenance which will be looked after by the Karta of the family. However, there was no concept of exclusive property of women at the time. 

RECENT LEGAL CHANGES

The fifteenth law commission in India, brought this important matter of discimination in Hindu personal laws to light. It pointed out all the parts in the Hindu personal law which supported bias towards men and gave impetus to stereotypes against women. One of the important observations made was in regard to the rights of daughters not to be included as an heir in her maiden family property. This challenge was taken up by the government and soon after an amendment to the Hindu Succession Act in 2005 was made. It followed the instructions of the report and expanded the rights of women as property holders. The amendment gave absolute right of ownership to women, which meant that now she possesses the right to alienate the property according to her will. Daughters (both married and unmarried) are also entitled to be a coparcenary much like a son and can inherit the joint family property from their father, amending Section 6 of the Hindu Succession Act. Women of the family can also be the Karta of the family, allowing them a crucial position of decision making within the family.[8] The Hindu Adoption and Maintenance Act has also made it possible for a single unmarried daughter to introduce a male member in her father’s family as it permits a single parent to adopt a child.

The 2005 amendment to Section 6 of the Hindu Succession Act, also came with a proviso that the changes made will not affect any partition made before December 20,  2004. This led to a lot of confusion in its implementation. The Supreme Court in 2016 held that the amendment to Section 6 will only apply if the coparcener and her daughter, both are alive on the date of the commencement of the 2005 amendment.[9] However, the Supreme Court deviated with this stand in 2018, where it held that a female will be given her coparcener right in the same manner as a son even if her father had died before the commencement of the amendment.[10]

However, certain problems still persist. Even after giving equal coparcenary rights to daughters, male heirs enjoy a larger share as the law permits them to hold an additional coparcenary property over and above what they share equally with female heirs. Moreover, if a woman dies intestate her property will first go to her husband and his heirs then to her husband’s father’s heirs and only after that will it move to her mother’s heirs.[11]

CONCLUSION

Although the system has slowly evolved towards women’s emancipation from this strict patriarchal structure, it still has a considerable scoop for growth. One of the biggest demands for addressing ingrained gender stereotypes in personal laws in India is to introduce a Uniform Civil Code as was also promised to us by Article 44 (DPSP) of the Constitution of India. In a talk delivered by Leila Seth in 2005, she examines the significance and necessity of this demand. She states that to truly address the issue of gender inequality in India, it is important to not let the personal laws that subject women to unjust discrimination, hide behind the garb of religious freedom. She claims that women have been deprived of the right to hold any position of importance in traditional Hindu society starting from a single family unit. Even post independence with the emergence of many developed laws, because of such a complicated Hindu code governing their personal and financial rights, they are still not aware of what is their right, if any, in a given situation. If they are governed under a single set of rules, much like in criminal law, it will be easier for them to ask for its enforcement.[12]

Even Amartya Sen, a revolutionary economist goes on to emphasize on the importance of having strong and clear property rights for women which could go a long way in strengthening their financial freedom and giving more power to what he calls a “women’s agency.”[13]

Where women’s rights are considered, it should not be limited to theories and speeches. It must come to the level of practice and applicability, which can shape the society in a way where a woman is truly independent of her male counterparts so that her decisions and her life cannot be dominated by them.

Author: Kriti Shukla, Christ University, Bangalore.


[1]Kaur, Sukhpal. “WOMEN’S RIGHTS : A HISTORICAL PERSPECTIVE.” The Indian Journal of Political Science 70, no. 1 (2009): 121-30. Accessed February 22, 2021. http://www.jstor.org/stable/41856500.

[2] Surjit Lal Chhabda v. CIT, 1975, 101 ITR 776.

[3] Poonam Pradhan Saxena, Family Law II 53, (LexisNexis, Gurgaon, 4th edn., 2019).

[4] Mahalaxmi Pavani, “Coparcenary Rights of Daughters” THE LEAFLET, August 28, 2020, available at: https://www.theleaflet.in/21478-2/#.

[5] Halder, Debarati, and K. Jaishankar. “PROPERTY RIGHTS OF HINDU WOMEN: A FEMINIST REVIEW OF SUCCESSION LAWS OF ANCIENT, MEDIEVAL, AND MODERN INDIA.” Journal of Law and Religion 24, no. 2 (2008): 663-87. Accessed February 22, 2021. http://www.jstor.org/stable/25654333.

[6] Halder, Debarati, and K. Jaishankar. “PROPERTY RIGHTS OF HINDU WOMEN: A FEMINIST REVIEW OF SUCCESSION LAWS OF ANCIENT, MEDIEVAL, AND MODERN INDIA.” Journal of Law and Religion 24, no. 2 (2008): 663-87. Accessed February 22, 2021. http://www.jstor.org/stable/25654333.

[7] Supra note 4 at 63.

[8]Subodh Asthana, “Coparcenary under Hindu law” Ipleaders, February 25, 2020, available at: https://blog.ipleaders.in/coparcenary-hindu-law/.

[9]Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36.

[10]Danamma@ Suman Surpur & Anr. v. Amar & Ors. (2018) 3 SCC 343.

[11] Jasleen Kaur Dua, “Coparcenary in India: It’s Past, Present and Future” Academike, February 3, 2015, available at: https://www.lawctopus.com/academike/coparcenary-india-past-present-future/.

[12] Seth, Leila. “A Uniform Civil Code: Towards Gender Justice.” India International Centre Quarterly 31, no. 4 (2005): 40-54. Accessed February 22, 2021. http://www.jstor.org/stable/23005979.

[13] Amartya Sen, Development as Freedom, (Anchor Books, New York, 1st edn. 1999).

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