PROJECT-FEMALE AS KARTA
CHANAKYA NATIONAL LAW
UNIVERSITY, PATNA
PROJECT OF FAMILY LAW-II
Submitted to:- Ravi Ranjan Sir
Submitted by:-Aparna Arya,
B.A.LL.B.(hons.)
Roll no.-111
semester-!
AKNOWLEDGEMENT
Writing a project is one of the most significant academic challenges, I
have ever faced. Though this project has been presented by
me but there are many people who remained in veil, who
gave their all support and helped me to complete this project.
First of all I am very grateful to my subject teacher Ravi Ranjan
sir without the kind support of whom and help the completion of
the
project was a herculean task for me. e donated his
valuable time from his busy schedule to help me to
complete this project and suggested me from where and how to
collect data.
I am very thankful to the librarian who provided me several
books on this topic which proved beneficial in completing this project.
I last but not the least, I am very much thankful to my
parents and family, who always stand aside me and helped me a lot
in accessing all sorts of resources.
I thank all of them!
CONTENTS
1. Introduction..................................................."
2. Women#s position in coparcenary .........................................................$
3. Women#s property right% hindu, muslim, christian ..............................&'
4. Women as a karta ..............................................................................&$
5. (udicial reforms ........................................................................................')
6. *onclusion ..................................................................................................'+
I-I/R012
1. INTRODUCTION
The -aw *ommission of India in its &3"th Report on 41roperty Rights of Women5 1roposed
Reforms under the indu -aw6 in 7ay '))) mentioned in the introduction itself that
48iscrimination against women is so pervasive that it sometimes surfaces on a bare perusal
of the law made by the legislature itself. This is particularly so in relation to laws governing
the inheritance9succession of property amongst the members of a (oint indu family. It seems
that this discrimination is so deep and systematic that it has placed women at the receiving
end. Recogni:ing this the -aw *ommission in pursuance of its terms of reference, which,
inter%alia, oblige and empower it to make recommendations for the removal of anomalies,
ambiguities and ine;ualities in the law, decided to undertake a study of certain provisions
regarding the property rights of indu women under the indu <uccession 0ct, &=>?.
7uch like those of women of any other country, property rights of Indian women have
evolved out a continuing struggle between the status ;uoist and the progressive forces. 0nd
pretty much like the property rights of women elsewhere, property rights of Indian
women too are une;ual and unfair5 while they have come a long way ahead in the last
century, Indian women still continue to get less rights in property than the men, both in
terms of ;uality and
;uantity. What may be slightly different about the property rights of Indian women is that,
alongwith many other personal rights, in the matter of property rights too the Indian women
are highly divided within themselves. ome to diverse religions, till date, India has failed to
bring in a uniform civil code.
Therefore every religious community continues to be governed by its respective personal
laws in several matters @ property rights are one of them. Infact even within the different
religious groups, there are sub%groups and local customs and norms with their respective
property rights. Thus indus, <ikhs, uddhists and (ains are governed by one
code of
property rights codified only as recently as the year &=>?, while *hristians are governed
by another code and the 7uslims have not codified their property rights, neither the <hias
nor the <unnis.
0lso, the tribal women of various religions and states continue to be governed for their
property rights by the customs and norms of their tribes. To complicate it further, under
the Indian *onstitution, both the central and the state governments are competent to enact
laws on matters of succession and hence the states can, and some have,
enacted their own variations of property laws within each personal law. There is
therefore no single body of
property rights of Indian women.
The property rights of the Indian woman get determined depending on which religion and
religious school she follows, if she is married or unmarried, which part of the country she
comes from, if she is a tribal or non%tribal and so on. Ironically, what unifies them is the fact
that cutting across all those divisions, the property rights of the Indian women are immune
from *onstitutional protectionA the various property rights could be, as they indeed are in
several ways, discriminatory and arbitrary, notwithstanding the *onstitutional guarantee
of e;uality and fairness. For by and large, with a few eBceptions, the Indian courts have
refused to test the personal laws on the touchstone of *onstitution to strike down
those that are
frame the uniform civil code as per the mandate of a 8irective 1rinciple in 0rticle "" of the
*onstitution.
W7CD#< 1<ITID 0FTCR RI/T T 1R1CRT2 0*T &=+3
indus were governed by <hastric and *ustomary laws which varied from region to
region and sometimes it varied in the same region on a caste basis. 0s the country is
vast and communications and social interactions in the past were difficult, it led to a
diversity in the law. *onse;uently, in matters of succession also, there were
different schools, like 8ayabhaga in engal and the adjoining areasA 7ayukha in ombay,
Eonkan and /ujarat and 7arumakkattayam or Dambudri in Eerala and 7itakshara in other
parts of India with slight variations.
The multiplicity of succession laws in India, diverse in their nature, owing to their varied
origin made the property laws even mere compleB. 0 woman in a joint
indu family, consisting both of man and woman, had a right to sustenance, but the
control and ownership of property did not vest in her. Do female is a member of the
coparcenary in 7itakshara law.
nder the 7itakshara system, joint family property devolves by survivorship
within the coparcenary. This means that with every birth or death of a male in the family,
the share of every other surviving male either gets diminished or enlarged.
The 7itakshara law also recognises inheritance by succession but only to the
property separately owned by an individual, male or female. Females are included as heirs to
this kind of property by 7itakshara law.efore the indu -aw of Inheritance G0mendmentH
0ct &='=, the engal, enares and 7ithila sub schools of 7itakshara recognised only
five female relations as being entitled to inherit namely % widow, daughter, mother paternal
grandmother, and paternal great%grandmother.
The 7adras sub%school recognised the heritable capacity of a larger number of females heirs
that is of the sons daughter, daughters daughter and the sister, as heirs who are eBpressly
named as heirs in indu -aw of Inheritance G0mendmentH 0ct,&='=. The sons daughter and
the daughters daughter ranked as bandhus in ombay and 7adras. The ombay school
which is most liberal to women, recognised a nunmber of other female heirs, including a
half sister, fathers sister and women married into the family such as stepmother, sons
widow,
brothers widow and also many other females classified as bandhus.The 0ct of
&=+3 gave absolute rights to all indu women over a certain portion of <tridhan.
The part of <tridhan, ac;uired by the female independently or the part that was gifted to her
by her parents gave her an absolute right over the aforesaid portions. <he became the absolute
owner of such <tridhan. owever, the form of <tridhan, ac;uired by her from her in%laws,
gave her only a limited right over such variety.
n her death, the latter portion went to her reversioners Gthe lot which would have ac;uired
the property had the female not eBisted in the first placeH. 0s per the provisions of this 0ct,
if a male member of a 7itakshara (oint indu family died and was survived by his widow
then the latter could claim a share of the deceased coparcener subject to certain conditions.
nder
estamentary disposition. Thesechanges have been sought to be made on the
touchstone of e;uality, thus seeking to remove the perceived
disability to which a daughter was subjected.
The implications of this fundamental change are
wide. <ince a daughter now stands on an e;ual footing with ason of a coparcener, she is now
invested with all the rights, including the right to seek partition of
the coparcernaryproperty. Where under the old law, since a female could not
actas Earta of the
joint family, as a result of the new provision,she could also become Earta of the joint indu
f amily. <ub section G'H stipulates that any property to whicha female indu becomes
entitled, under sub section G&H, would be held by her with all the incidents of coparcenary
ownership.
To retain the 7itakshara joint family and at the same time to put a daughter on the same
footing as a son with respect to the right by birth, right of survivorship and to claim partition
at any time, will be to provide for a joint family unknown to law and unworkable in
practice.6
owever there was one striking feature of all these four state amendments @ they held that
only a daughter who was unmarried at the time of the amendment would be entitled to be a
coparcener. The amending 0cts of 0ndhra 1radesh, Tamil Dadu and 7aharashtra add three
sections namely '=0, '= and '=* and Earnataka adds them as <ections ?0, ? and ?*
of the 0ct.
Thus, these amendments state that a daughter of a coparcener shall by birth
become a coparcener in her own right in the same manner as a son and have the same
rights in the coparcenary property as she would have had if she had been a son. Thus, a
daughter will also
be entitled to be a karta of the joint family, and will by virtue of that position eBercise
the right to spend the income for joint family properties for legal necessity of benefit of the
3. Women’s p$ope$!% $&'!s( )n*+, M+s-m, C'$s!#n.
The seed for personal law was sown by the ritish with the engal Regulation of &33'
providing that in disputes relating to family like inheritance, marriage, divorce, adoption etc,
the courts should apply the laws of Ouran with respect to 7uslims and for indus, the
<hastric law. 0s far as *hristians were concerned, there was no specific law for them. ence
disputes were settled as per Cnglish principles of (ustice, C;uity and /ood conscience.
The ritish policy of non%interference with the personal laws of different communities
took its deep roots in the communities and the /overnment of India has been continuing the
policy of non%interference even though it has ratified the *C80W convention. <o the
*onstitutional mandate of niform *ivil *ode under 0rticle "" of the *onstitutionwent
into oblivion. estate. It was /autama 8harmasastra who first called women#s property as
<tridhana share. 7ayne also opined that the original bride price payable to the parents
appears to have become transferred into the dowry for the wife. > 0part from this stridhana,
a married woman could receive gifts from strangersA she could also make her own
contributions by doing other skilled labor. 2et she had no absolute control over her
property because her right to dispose of the
property is restricted.
Women#s property rights in the 1atriarchal Family
0 indu father in patriarchal family enjoyed absolute power just as the Roman father in
ancient Rome. The scriptures undoubtedly contributed much to make the father, the head
of the family a despotic ruler. 7anu said that three persons, a wife, a son and a slave
are declared by law to have in general no wealth eBclusively their ownA the wealth which
they may earn is regularly ac;uired for the man to whom they belong.
<imilarly Darada held the view that a son could be independent only if his parents are deadA
during their lifetime he is dependent even though he is grown old&$. <o in a patriarchal
family women and children did not have property rights. The wife was put into the group
of chattels and slaves. They had an oppressed and subjugated life in the traditional
patriarchal families.?
There were also fears among the orthodoB indu men that if women were given property
rights families would breakup. In &="$ there was an 0ll India 0nti indu *ode *onvention.
It was argued that the introduction of women#s share would result into
disintegration of
indu family system which had been working as a co%operative system for
ages for
preservation of family ties and property. It was also pointed out that the inclusion of daughter
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in the line of inheritance is due to Curopean influence. The history of indu -aw reform
starts with the indu -aw committee GRau *ommitteeH set up in &="&.
It was followed by second *ommittee in &="". The committee finally submitted its report to
the Federal 1arliament in &="3. The recommendations of the committee were debated in the
provincial 1arliament. There was strong opposition against the introduction of
monogamy, divorce, abolition of coparcenery and inheritance to daughters from
the orthodoB indu community.
The framers of the Indian *onstitution took note of the adverse and discriminatory position
of women in society and took special care to ensure that the <tate took positive steps to give
her e;ual status. 0rticles &", &>G'H and G+H and &? of the *onstitution of India, thus not
only inhibit discrimination against women but in appropriate circumstances provide a free
hand to the <tate to provide protective discrimination in favour of women. These provisions
are part of the Fundamental Rights guaranteed by the *onstitution. 1art IN of
the *onstitution contains the 8irective 1rinciples which are no less fundamental in the
governance of the <tate and inter%alia also provide that the <tate shall endeavour to ensure
e;uality between man and woman Dotwithstanding these constitutional mandates9directives
given more than fifty years ago, a woman is still neglected in her own natal family as well
as in the family she marries into because of blatant disregard and unjustified violation of
these provisions by some of the
personal land.
Women#s right to property has been substantially improved by the indu <uccession 0ct
&=>?. The concept of women being entitled to a limited estate when they ac;uire property by
inheritance is abolished and women are entitled to an absolute estate like men
when they inherit any property. 0gain the daughter of a predeceased son and
the daughter of a
predeceased daughter are raised to a higher rank. They became *lass @ I heirs and get a share
along with the son, and other *lass @ I heirs. The daughters are included in the *lass @ I in
order to remove the discrimination on the basis of seB.
<imilarly succession to a women#s property or stridhanam of whatever nature
is made uniform irrespective of the nature of stridhanam. In the same way the
distinction between male and female heirs in the case of succession has been taken away and
now they are treated on e;ual basis if they belong to the same degree of relationship.
Women will no longer be disinherited on the ground of unchastit y.3
The -aw *ommission was concerned with the discrimination inherent in the
7itakshara coparcenary under <ection ? of the indu <uccession 0ct, as it
only consists of male members. The *ommission in this regard ascertained the opinion
of a cross section of society in order to find out, whether the 7itakshara coparcenary
should be retained as provided in section ? of the indu <uccession 0ct, &=>?, or in an
altered form, or it should be totally abolished. There were other ;uestions involved also,
like should women be karta in absence
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The international *onventions on women always focus on women#s inheritance rights.
owever neither the community nor the *hurch would ever take any step to plug
the eBisting loopholes in the Indian <uccession 0ct &='> because they are up in
arms against women inheriting property. The -aw *ommission also has been
enthusiastic in the reforms of indu <uccession -aw.
Do such enthusiasm is shown in reforming *hristian 1ersonal -aw. In tune with
the
-aw *ommissions recommendations, even the /overnment has made an effort to
make reformatory laws in indu <uccession, though it is not implemented effectively.
To make matters worse *hristian women are still being controlled by the *hurch
through its *anon laws which ensure women#s subjugation and subordinate status.
nder the <hastric -aw, a daughter on marriage ceases to be a member of the parental
family, but the 0mending 0cts have changed her position, which is ;uite alien to
indu patriarchal notions. Though her position as defacto manager was recogni:ed
when mothers acted as guardians of their minor sons after the death of their husbands,
the dejure conferment of the right eluded her.
The law commission also has rightly observed that although the indu <uccession
0mendment 0ct, '))> has conferred upon the daughter of a coparcener status but
there is still a reluctance to making her a Earta. This seems to be patently unfair as
women are proving themselves e;ual to any task. <ince they can act as coparcenaries
then they must also be given the powers of Earta.
The shastra is clear that in the absence of senior member a junior member Gif he has
reached the age of legal competenceH may incur debts for the needs of the family, and
in the absence of a male member a female member may do so. The <anskritic teBts
empower women to act as Earta in instances like when the husband is away or missing
or the son is yet to attain majority.C;uality for women is not just a matter of e;uity
for the so%called weaker seB, but a measure of the modernity of Indian society and
the
pragmatic nature of our civili:ation.
ILIOGRA)
1. .-e&#-se$"en*#."om
2. .m#n+p#!$#."om
3. .m+s-mpe$son#--#."o.#
4. '!!p788s'o*'&#n&#.n0-9ne!.#".n
5. .n*#n#noon."om
• The *hristians in Travancore were formerly indus hailing from Damboodiries
families having joint family property. This tradition is still being
continued.
*hristians have no separate property.
• T.E.Rajalakshmi, 47uslim Women more Nulnerable6 Frontline, Nol.'", issue o',
(an%Feb%'3, '))3.
• <helly <aluja and <oumya <aBena, 4*hanges brought in the position of women
after the '))> G0mendmentH6 available at5
http599www.legalservicesindia.com G0ccessed on '&.)>.')&)H.
• T$ K!#*# J'(/ F#)'*+ S+/) 9A=*'/'(; A/ 176, /$ H'(%
S'( 9A(%$!# P!#%$ A)(%)(/; A/, 1<6, /$ H'(%
S'( 9T$ T#)'*(#% A)(%)(/; A/ 1<, /$ H'(%
S'( 9K#!(#/#># A)(%)(/; A/ 14, /$ H'(% S'(
9M#$#!#$/!# A)(%)(/; A/ 14.
• P!"# C$#%$#, &H'(% F#)'*+ P!!/+ *#0 '( I(%'# #(% (%! E#*'/+
A(#*+' /$ H'(% S'( A/ 1568, V* 2, SCJ J 16. 92::2;
