CHAPTER 1
INTRODUCTION
I.
Women and Unequal Inheritance Rights
Though the status of women in India is undergoing a significant change after
a long history of discrimination and subjugation leaving behind the age old tradition
of domestic confinement, gender inequality still persists in the private sphere, ‘the
home’1. Women in fact constitute half of the world’s population and work two-third
of the world’s working hours, but she earns just one-tenth of the world’s income 2.
This statistics itself reveals the injustice meted out by women all over the world
despite numerous legislations ensuring equality, prohibiting discrimination on the
basis of sex, religion, race, caste and place of birth3. Gender injustice is highly glaring
in the matter of women’s property right all across the globe. This is because their
property rights are limited by custom, social norms, legislations which hamper their
economic status, opportunities and dignified life in the home.
Ownership of land and other property empowers women and provides
income, security and status. Without resources such as land, women have limited say
in house-hold decision making and no assets during crisis4. Similarly women who
1
2
3
4
Dr. Jitendra Mishra, “Right to equality and Gender Justice”, 91 AIR 485 (2004).
UN Human Development Report 1995,available at: http://www.hdr.undp.org(Accessed on 20 .9.
2011)
For instance, The Constitution of India under Article 14 guarantees equality before law and equal
protection of Laws. Article 15(1) prohibits discrimination on the basis of sex, race, caste, religion
and place of birth. Almost all Constitutions of the world guarantee similar protection.
Women’s land and property rights. UN women’-United Nations Entity for Gender Equality and the
Empowerment of women. The UN General Assembly on July 2, 2010 voted unanimously to create
a UN Entity for Gender Equality and the Empowerment of women named UN Women (UNW).
The new entity is meant to accelerate progress in meeting the needs of women and girls worldwide
and to end discriminatory disparity.
1
own property are better positioned to improve their lives. By owning their own home
and land women directly gain from benefits like use of land, higher incomes and a
secure place to live. Moreover economic independence ensures personality
development which would make her confident, free and secure 5. Further Women’s
ownership of property would also improve child nutritional status, higher education
for girls and other positive impacts6.
As per the 2011 census, sex ratio among children (0 – 6 years) became
shockingly very low. It has declined to 914 female children for every 1000 male. It
was 927 during the previous census. This shows that boys are continued to be
preferred and daughters remain unwanted.7 The reduction in girl population is not
because of the natural population divide but it is arrived due to anti-girl-child gender
bias. Generally gender inequality is a burden on societies. Hence the modern societies
adopt heinous practices like female foeticide, female infanticide, sex deduction tests
etc. Daughters are viewed as a liability8. All these social issues are centered on the
problem of lack of property rights to women. If women have ownership of property,
they would no longer become a burden in the family because their status is also equal
to that of sons in the matter of property rights. On the other hand if property rights are
not given to women, their status will be lowered and it would lead to the subjugation
and subordinate status of women9.
5
6
7
8
9
Kshma Sen, “Atrocities against Women:Indian Perspective,available at:
www.articlesbase.com(Accessed on 8-2-2012)
Ibid
Shashikala Sitaram,`` Boom, Economy without Women`` The Hindu dated Sunday, Jun 12, 2001.
Ibid.
See Supra note 4 UN Woman (UNW).
2
In recent years international agreements have repeatedly reiterated the
importance of women’s land and property rights. The Beijing platform for Action10
affirmed that women’s right to inheritance and ownership of land and property should
be recognized. Again the convention on the Elimination of All forms of
Discrimination against Women (CEDAW)11 has underscored it by referring to rural
women’s right to equal treatment in land and agrarian reform processes. Women’s
property rights are an implicit part of achieving the Millennium Development Goals, 12
specifically Goal-1 on eradicating extreme poverty and Goal-3 on gender equality.
UNIFEM13 also advocates for women’s land and property rights as part of its
core strategy to improve women’s economic security and rights. There is also a strong
focus on ensuring that women benefit from equal rights to property under the law as
well as in actual practice at grass root levels. The International centre for Research on
Women (ICRW), working for the Third Millennium Project has also been forceful
proponent for property rights for women and girls as a key pre-condition for
achieving gender equality and women’s empowerment.
Further the UN special Rapporteur14 on Adequate Housing confirms the dire
situation of millions of women across the world. In almost all countries whether
developed or ‘developing’ legal security of tenure for women is almost entirely
dependent on the men they are associated with. Women headed households and
10
11
12
13
14
The Platform for Action is an agenda for women’s empowerment. The Conference was held in
Beijing, China in 1995.It included Action for Equality, Development and Peace,available
at:www.un.org (Accessed on 3.9.2011)
It defines what constitutes discrimination against women and sets up an agenda for national action
to end such discrimination.
Un,Millenium Development Goals-3,available at: www.un.org/millennium development
goals(Accessed on 18.2 2011)
United Nations Development Fund for Women,s available at www.unifem.org.in ( Accessed on
3.5.2011)
UN Special Rapporteur focuses on the question of women and adequate housing,available at
http:// www.un.org.(Accessed on 5.9.2011)
3
women in general are far less secure than men. Very few women own land. A
separated or divorced woman with no land and a family to care for often lands up in
an urban slum, where there is no security for her15.
Women’s equal rights to access, own and control land, housing and property
are thus firmly recognized at international level16. However at national level
persistence of discriminatory personal laws, policies, patriarchal customs, traditions
and attitudes are still blocking women from enjoying their rights. In the matter of
property rights legally male dominates the society. There are numerous provisions
under the Constitution of India which ensures that there shall be no discrimination
between sexes17, but in reality none are effective enough to bring about a revolution, a
radical change in the society.
What is guaranteed under Article 25 is the freedom to follow any religion and
this freedom does not encompass any additional right to compel a particular
community to impose its tenets on the believers. The Church through its Cannon law
has been influencing the Christians all over the world ever since its inception
advocating women’s subjugation dependence and obedience to the husbands. In order
to achieve this it is essential to curtail their freedom through the denial of economic
independence. Same is the case of other communities like Hindus and Muslims.
Manu’s code had been imposed on them to keep the Hindu women subjugated. The
15
16
17
Ibid.
The Habitat Agenda, Millennium Development Goals, various Resolutions of the UN Commission
on Human Rights entrust the UN-HABITAT to initiate efforts to improve women’s land, housing
and property rights, available at: http://www.unhabitat.org (Accessed on 28.11.10.)
Article 14 States shall not deny to any person equality before law and equal protection of laws
within the territory of India; Article 15 prohibits discrimination on ground of religion, race, caste,
sex or place of birth; Article 15(3) guarantees special provisions for the protection of weaker
sections; Article 25: All persons are equally entitled to freedom of conscience, enjoy the
right freely profess, practice and propagate religion. See for further details V.N.Shukla,
Constitution of India, 95(11 th edn.,Eastern Book Company Lucknow2011)
4
Muslim women undergo discrimination despite the glorified status given to them in
the Quran .To make matters worse the State continue the non interference policy of
the Colonial masters except in the case of Hindu women .They are given property
rights through codification of their religion based personal laws.
No mention of the property rights of women would be complete without
some reference to a women’s right to own her name. It has long been the custom for a
married woman to take the name of her husband upon marriage. This was a custom
prevailed in England under the doctrine of ‘Coverture18’ in common law. It was the
custom in England that the husband would become the guardian of the wife upon
marriage. Her property rights become his. Under law they become ‘one’ but the ‘one’
was the husband. As a result, it became the custom for the two of them to be known
by ‘one’ name….. That of husband.19 We in India still follow the common law
doctrine of coverture and follow the same rule.
II.
The Status of Women in General
The status of women in India is described in the Encyclopedia Britannica. It is
stated that in India subjection was cardinal principle. Manu says that day and night
women must be held by their protectors in a state of dependence. The rule of
inheritance was agnatic that is descent traced through males to the exclusion of
18
19
Lord Denning,Due Process of Law,198,(Oxford University Press,2008)
It is a Common law custom which dictates subordinate status of women during marriage. Before
marriage a woman can freely execute wills, enter into contracts, sue in her own name, or to be sued
in her own name or dispose of property as she likes. After marriage her legal status is suspended
under the legal fiction in which the husband and wife were considered a single entity: the husband.
Property Rights of women, Civics Library of the Missouri Bar,www.members.mobar.org/
Civics/women.htm.(Accessed on 2.7.2011)
5
females. 20However ancient Scriptures gave women an honoured and respected status.
Veda Vyasa’s Mahabharata attribute the fall of Pandava’s to the
humiliation meted
out by Droupadi. Similarly Valmiki Ramayana speaks of the destruction of Ravana
for abducting Sita. The traditional society in India on the one hand gives a glorified
position to women. Yet on the other hand they wanted to keep them subjugated.
Women are looked upon as a type of property which can be sold or pawned because
they were considered as chattels and they were bound to the patriarchal husband by
the tie of eternal duty and obedience.21Since women were put in the category of
property she was not given any property rights. The lower status given to women is
reflected in the words of Manu. He said that a wife, a son, a slave- these were
declared to have no property; the wealth which they earned was acquired for him to
whom they belonged22.
1. Status of Women in the ancient India
The Vedic society in India was patriarchal and masculine and the house-lord
enjoyed absolute control over all other members of the family. But in spite of all these
women occupied a much better position during the Vedic age, she enjoyed an honored
position in the family23despite the old concept that wife was the property of the
husband still persisted during this period24.The Vedas provided that girls should train
themselves to become complete scholars and youthful through Brahmacharya Sukta
and then enter married life25. Dr. A.S.Altekar is also of the view that the social or
20
21
22
23
24
25
Women in History-Mosaic and Hindu law, Encyclopedia Britanica,11th Ed.(1910-1911) ,available
at: http:// www.womeninhistory.about.com (Accessed on 3.10. 2011)
Kulwant Gill, Hindu women’s Right to Property in India, 21( Deep & Deep Publications,Delhi
1986)
Manu, VIII-416
See supra note 21 at 21
Ibid
Atharva Veda 11.5.18
6
familial status of daughters was fairly satisfactory during the Rig Vedic period. The
Veda further provided that parents should gift their daughter intellectuality and power
of knowledge when she leaves for her husband’s home and they should give her a
dowry of knowledge. It is further stated that the right is equal in father’s property for
both son and daughter26. Manusmriti also said that women are worthy of worship. The
gods reside in those households where women are worshipped27. It is again stated
that they were educated like boys and had to pass through a period of Bramacharya 28.
The marriage was considered essentially a union of two persons of full development.
During the Rig Vedic times, daughters did not have any right to hold, acquire
or dispose of property since she was not accorded legal status. But the daughter living
in her father’s house throughout her life got a share of his property29. But she could
not claim any share with her brothers since it is laid down in Rig Veda that a son born
of the body does not transfer wealth to sister30. Married daughters living with their
husbands could inherit from their father only when they had no brother31. But the
position of the wife was fairly satisfactory. She enjoyed absolute equality with men in
the eye of religion. Her social status was not only of a loving wife but also of a loving
mother. She was described by Vedic sages as an ornament of the home32. Despite
this exalted status, the wife did not have any legal status during the Vedic period and
hence she could neither hold nor inherit property. It was believed that the landed
property could be owned by one who had the power to defend it against rivals and
enemies. The wife was obviously unable to do that so she could not hold any property
and during this period widow could marry again. She need not give up her ornaments
26
27
28
29
30
31
32
Atharva Veda 10’85 .7
Manusmriti 3-56
Ibid
Rig Veda II, 17.
Rig Veda III, 31-32.
Rig Veda III, 31-32.
See supra note 21 at 22
7
and shave her head. The people practiced polygamy. It was generally prevalent among
aristocratic classes. Dowry system was common in rich and royal families, but only in
the form of movable gifts.
In the post Vedic period from 1500 BC to 500 AD, the exalted status of
women suffered a setback due to the various restrictions put on women’s rights and
privileges by Manu. Manu’s code depicted changed status of women which is
characterized as obedience to her husband is the beginning, the middle and the end of
female duty33. Manu and other Smritikars insisted for the perpetual dependence of
women34. Yajnavalkya declared that women should follow the words of her husband,
this is their highest duty35. Manu further emphasized that a woman’s father protects
her in childhood, the husband in youth and her sons protect in old age, a woman is
never fit for independence36. The social or familial status of daughter was also
towards deterioration during this period. The age of marriage was lowered and it was
recommended that the girls should be married before they attained puberty37.
Her proprietary right has also not improved much. The daughters like sons
did not have right by birth in the joint family property. As a rule female could not be
coparceners in the coparcenery. However, she was given a right in the separate
property of her father. So she was not altogether ignored as is clear from the slokas of
various sages. Manu said that as is self, so is a son and a daughter is equal to son, how
they, when one’s self is living in a form of one’s daughter, can anyone else take the
wealth38. Brihaspathi also stated that the wife is declared to be the inheritor of the
husband’s wealth and, in default of her, the daughter, the daughter, like a son springs
33
34
35
36
37
38
Dr.S.R.Myneni, Women and Law, 4B (2nd edn., Asia Law House, Hyderabad,2008)
Dr.R.Revathi, Law Relating to Domestic Violence 1 (2nd edn., Asia Law House, Hyderabad,2009)
Yajnavalkya Smrithi: 1:18.
Manu Smrithi, V.148.
Gauthama Samhita, 11.9.24.
Manu IX, 100.
8
from the limb of man, how any other man can inherit her father’s property while she
lives39.
It can be concluded from the slokas that even with respect to the separate
property of the father, the daughter’s right to succeed to that property was restricted
and limited. She could succeed only in default of a son, grandson, great grandson and
a widow40. But Smriti writers were of the opinion that she could get to the extent of
one-fourth share of what she should have had, had she been a son. So Manu said that
to the maiden (sister), the brothers shall severally give (portion) out of their share,
each out of his share, one-fourth part, those who refuse to give (it) will become out
castes41. Similarly Yajnavalkya laid down that sisters should be disposed of in
marriage giving them as an allotment the fourth share42. This fourth share is in fact
reserved for marriage expenses and it was not a share of the daughter.
With respect to the wife’s legal status it was generally thought that she had
no proprietary rights. This is because the ancient society was feudal and patriarchal.
The Scriptures and Dharma Sastras perpetuated this patriarchal system which insisted
for women’s implicit obedience and subordination43. The reason behind such an
attitude was that wife has no separate entity of her own apart from the husband. They
are considered to be one in the eye of law. Hence, wife is not entitled to separate
ownership. Further during the life time of her husband she has only the right for
residence and maintenance44.
39
40
41
42
43
44
Brihaspati XXV, 56.
See supra note 21 at.27
Manu Smrithi IX, 118.
Yajnavalkya Smrithi 11, 124.
L.R. Nair,``Indian Women Down the Ages``,available at www. shodhaganga. inflibnet. ac. in
(Accessed on 4.9.2011)
See supra note 21 at 31.
9
In the matter of partition, a wife cannot demand partition. However if
partition took place during the life time of her husband, she is entitled to get a share
equal to that of her son or sons. She will get her share only if she is not in possession
of her stridhana45. In such a case she would be allotted that much share to make it
equal to that of a son46. Again Hindu Law never allowed women independence with
regard to the disposition of property. Ancient law givers like Manu said that woman
should never make expenditure out of the family property belonging to several or
even out of her own stridhana without the assent of her husband 47.Another Law giver
Narada too said that women’s business transactions are null and void, except in case
of distress women are not entitled to make a gift or sale. A woman can take only a life
interest whilst she is living together with the rest of the family48.
It can be concluded that the social status of women was not satisfactory in
the post-Vedic period also. There was a revival of the evil custom of Sati as well.
Widow Remarriage was also discouraged. A widow can live in the joint family and
receive maintenance. In course of time the widows were being tortured by brother-inlaws under the guise of niyoga49. To overcome these widows were allotted a life
estate in her husband’s share and she was permitted to live separately. The most
remarkable feature of this period is hence the recognition of the proprietary right of
the widow.
During the Muslim period, the position of women further deteriorated.
Muslim invasion of India brought complete subordination of women and they were
45
46
47
48
49
Yajnavalkya Smrithi, 1.76
Ibid. 11,115
Manu Smrithi, IX-199.
Narada Smrithi, 1,2.
See supra note 21 at 33
10
compelled to take purdah50. The purdah restricted the movement of women outside
home and they were deprived of education and women were made more and more
dependent on men51.The Scriptures also propagated the idea that women were unfit
for freedom and deserved no independence. They should be kept under the authority
of men in all stages of life. The custom of child marriage and the inhuman practice of
Sati became a part of the social culture along with religious ban on widow remarriage52. Due to the prevalence of the custom of child marriage during the Mughal
Period, the Hindu daughters were married at a tender age of nine or ten and in some
cases they were married even before they learn to talk. During the British period, the
attitude, behavior and living pattern of Hindu Society changed and reached the
maximum degree of deterioration. The worst aspect of their social degradation was
the terrible sufferings and social falling of women who even engaged the attention of
almost all social reformers. Women were not given equal matrimonial right to
property, rights to widows to remarriage adoption and divorce rights53.
2. Pre- Constitutional Period
During the British period, the attitude, behavior and living pattern of Hindu
Society changed and reached the maximum degree of deterioration. The worst aspect
of their social degradation was the terrible sufferings and social falling of women
50
See supra note 21 at 34
Women in History, NCRW, Department of women and child development, Government of
India,available at: http:/ncrew.nic.in (.Accessed on 12.5.2011)
52
Ibid.
53
` Status of women in India:Problems and Concerns’, 12, Internship project(DEC 2010-January
2011) supported by Henrich Boll Foundation Germany ,available at: www.csss-isla.com(Accessed
on 20.4.2011)
51
11
which even engaged the attention of almost all social reformers54. Thus the plight of
women became the focal point for social reformation.
During the 19th century,
serious efforts were made by social reformers like Rajaram Mohan Roy for
eradication of social evils and making people sensitive to injustices perpetrated to
women55. Flood gates were open to social reforms during this period56. The reform
movement successfully eradicated some of the deep rooted evils like Sati57. A good
number of social legislations like Widow Remarriage Act 1856, The Child Marriage
Restraint Act 1929 were enacted to improve the status of women.
3. The Post Constitutional Period
Independence brought about a sea change in the country and the framers of
the Indian Constitution gave priority to women’s equal rights. The Constitution
enshrined the equality principle and guaranteed that all are equal before law
irrespective of their religion, race, caste, sex or place of birth. This was the greatest
honour paid to the once neglected and subjugated section of the society58. The
fundamental rights couched in Articles 14, 15 and 16 of the Constitution guarantee
that women in India shall be treated equally on par with men. Article 15(3) empowers
State to take affirmative action through protective discrimination in order to undo the
past sufferings and subordination underwent by the women of India from time
immemorial59. Further the Directive Principles of State Policy60 obligates the State to
54
55
56
57
58
59
Kiran Devandra, Status and Position of Women in India, 3,( Vikas Publishing House Pvt.
Ltd.1997)
See supra note 21 at 37
See supra note 51
Manmohan Kaur, ‘Role of women in the Freedom movement 4 (1857-1947), (1968) NewDelhi,
Sterling publishers 1968)
Shruti Pandey,``Property Rights of Indian Women”, available at:’www. mulimpersonallaw. com
(Accessed on 8.4.2011)
See supra .note 54 at 3
12
provide equal rights for men and women, adequate means of livelihood and equal pay
for equal work61. The principle of right to live with dignity has been incorporated in
the Preamble, 62 fundamental rights and the Directive principles of State policy of the
Constitution.
After conferring equality in the Constitution, immediate steps were
taken to reform and codify Hindu Law. Thus the Hindu Marriage Act, 1955, the
Hindu Succession Act 1956, the Hindu Adoptions and Maintenance Act 1956 and the
Hindu Minority and Guardianship Act 1956 were passed in order to wipe out the
discriminatory customs and to bring about a change in the status and position of
Hindu Women. Equal status was conferred on them on par with men in the
matrimonial home also. The Hindu Succession Act 1956 gave the woman the same
rights in the matter of succession as a man thereby making a material change in her
ability to inherit and alienate property. Daughter, Wife and Mother have been brought
under Class –I heirs. Women have been made absolute owners of the property
whether it was acquired before or after the commencement of the Act 63.
Even after independence and the commencement of the Constitution, the
Property rights of Indian women as elsewhere are too unequal and unfair. The Hindu
women were not given inheritance rights in the joint Hindu Family property. Only
male members were entitled to coparcener status. Hence Indian women still continue
to get fewer rights in property than the men both in terms of quality and quantity.
There is a slight difference in the property rights of Indian women based on religion.
60
61
62
63
Article 39 of Indian Constitution.
Ibid.
The Preamble of Indian Constitution assures the dignity of the individual, the unity and integrity of
the nation.
Section 14 of the Hindu Succession Act 1956.
13
The peculiarity is that along with many other personal rights, in the matter of property
rights too the Indian women are highly divided within themselves. Even today India
has failed to bring a uniform civil code as envisaged under Article 44 of the
Constitution. It is to be submitted that in India there is uniformity in one aspect, that
is Indian men are controllers of most of the property and resources in India.
In the absence of a uniform civil code, every religious community continues
to be governed by its respective personal laws64 in several matters and property rights
is one of them. In fact, even within the different religious groups, there are sub-groups
and local customs and norms with their respective property rights. Thus Hindus,
Sikhs, Buddhists and Jains are governed by one code of property rights which is
codified in 1956. Christians governed by one code, The Indian Succession Act 1925.
However certain groups like Garos are excluded from the purview of the Act.
Muslims have not codified their property rights.
To make matters worse, the Constitution permits Central and State
Governments to enact laws on matters of succession and hence the States can enact
their own variations of property laws within each personal law. It is worth mentioning
the amendments made by five southern States in India, 65 namely Kerala, Andhra
Pradesh, Tamilnadu, Maharashtra and Karnataka. As per the law of these States
except Kerala, in a joint family governed by Mitakshara law, the daughter of a
coparcener shall by birth become a coparcener in her own right in the same manner as
64
65
For example, The Travancore Christian Succession Act 1916 and the Cochin Christian Succession
Act 1921 of Kerala.
The Kerala Joint Family System (Abolition) Act 1976, The Hindu Succession (Andhra Pradesh
Amendment) Act, 1986, The Hindu Succession (The Tamilnadu Amendment) Act 1989, The
Hindu Succession (Karnataka Amendment) Act 1994, The Hindu Succession (Maharashtra
Amendment) Act 1994.
14
the son. However Kerala has gone one step further and has abolished the right to
claim any interest in any property of an ancestor during his or her lifetime based on
the mere fact that he or she was born in the family.
The Hindu Succession (Amendment) Act 2005 struck at the root of the
patriarchy. It crushed the exclusive citadel of male coparcenary in order to give effect
to the principle of equality enshrined in the preamble and Part III of the Indian
Constitution. The gender discrimination in the Mitakshara coparcenary has been
completely wiped off by raising the status of female members of the Hindu Joint
Family equal to that of the male coparceners66. Male and Female heiress acquired
birth right equally67 in addition to the right to inherit equally the property of the
intestate father if the dead father had not willed away his property while he was alive.
The discrimination between married and unmarried daughters has been removed68
now married Hindu women can also ask for partition of the dwelling house69.
Till 1986, the Indian Courts also in general, barring few exceptions, had
been reluctant to test the personal laws on the touchstone of Constitution and to strike
down those that are clearly unconstitutional. They just left it to the wisdom of
legislature and direct them to take immediate steps to frame uniform civil code as per
66
67
68
69
Section 6 of the 1956 Act was amended in 2005 to remove the gender discrimination, women are
getting birth right in the ancestral property.
Section.6 of the Hindu Succession (Amendment) Act 2005.
Bina Agarwal, ``Landmark steps to gender equality.`` The Hindu, Sunday September 25, 2005.
Section 6 of The Hindu Succession (Amendment) Act 2005 included married daughters as
coparceners in the Joint Family Property, thereby removing the discrimination between married and
unmarried daughters.
Section 23 of The Hindu Succession Act 1956 disentitled a Hindu woman to ask for partition in
respect of a dwelling house wholly occupied by a Joint Family until all the male heirs choose to
divide their respective shares. The Law Commission in its 174th report recommended for daughter’s
full right of residence in their parental home. Consequently section 23 of 1956 Act was deleted by
the 2005 Amendment Act. Hence the last remains of discrimination against women was removed.
15
the mandate under Article 44 of the Constitution70. However after1986, we see a bold
Judiciary delivering gender friendly judgments.
III. Significance of the Study
Discrimination against women in the matter of inheritance has been an issue
because of the religion based personal laws despite the guarantee of equal status under
Article 14 of the Constitution. The Indian Constitution has not dealt the problem of
separate personal laws following different inheritance laws. The Succession laws of a
family make the family members economically independent. However in practice
women are often ignored when it comes to property matters.71 Consequently women
are deprived the Constitutional protection of Equality of Status. In the matter of
succession alone plurality of provisions exists. There is one testamentary rule for
Hindus and Christians. The Indian Succession Act under Section 57 confers absolute
testamentary capacity to the testator; whereas the Muslim personal law restricts the
testamentary capacity to 1/3 of its property72.
The Constitution and hence the Judiciary followed the colonial policy of
non-interference in the personal laws of communities except in the case of Hindus.
The Supreme Court immediately after independence was reluctant to interfere in the
personal laws. This was reflected in the landmark decision of Chief Justice Chagla
and Js.Gajendra Gadkar in Narasu Appa Mali73. In Krishna Singh v. Madhura Ahir74
the Supreme Court even rejected the applicability of Part III to personal laws75.
70
71
72
73
Article 44 requires the State to secure for the citizens a Uniform Civil Code throughout the
territory of India.
Mrs.Indira Nair, “Discrimination against women,’’ Central Law Quarterly, Vol. IX:11,208,(1996).
Vinay Reddy, “Women and Succession Laws in India’’, A Critical Analysis”, Vol. 26, issue
No.192, 19-28, Indian Socio Legal Journal( 2000)
AIR 1952 Bom 84.
16
The converted Syrian Christians in Travancore and Cochin followed the
Hindu Customs and usages. This is because they were high class Namboodiries before
their conversion76. It is with the advent of Portuguese and the British, Canon
laws77were applied to the Christians in India after bringing the converted St.Thomas
Christians into the fold of Rome, the headquarters of Roman Catholic Church. The
source of Cannon Law can be traced to Bible and the Jews followed the inheritance
rules prescribed in the scriptures. The Book of Genesis speaks of the bondage of
marriage between husband and wife. Wife is given superior status in Genesis. The
man shall leave his father and his mother 78. This passage refers in fact to the married
couple becoming one flesh. However this religious concept was distorted to mean
that a woman’s legal existence merges with that of her husband by marriage and it
became a common law rule of coverture under which a woman becomes a non-entity.
So she cannot own property after marriage. Whatever she owned becomes that of the
husband. So a patriarchal society came into existence and it spread across the world
through Cannon law and Church.
There was no definite Law to govern the Succession matters of the Syrian
Christians of Travancore. The Courts were passing contradictory decisions based on
the Indian Succession Act 1865. Finally the Succession Law for the Christians in
Travancore was promulgated in 1916 for governing the succession matters of the
Syrian Christians in Travancore. As per Section 24 of the Act, a mother or widow will
have only a life interest terminable at death or marriage. Further Section 28 provided
74
75
76
77
78
AIR 1980 SC 707.
Fauzia Shakil “The two Systems of Testamentary Succession laws in India; A critical appraisal”,
AIR J.101, (2007)
L.K.Anantha Krishna Ayer, Syrian Christians of Malabar – Cochin and Travancore Cochin,34044 Government press 1924,available at: http://www.new.dli.ernet.in (Accessed on 07.08.2011)
The Acts and Decrees of Synod of Diamper (1599) contain the Canon Laws.
Genesis 2:24.
17
that the male heirs shall be entitled to have the whole of the intestate’s property
divided equally among themselves subject to the claims of the daughter for
streedhanam. The streedhanam due to a daughter shall be fixed at ¼ the value of the
share of a son or Rs.5000/- whichever is less. Female heirs who were paid
streedhanam are left out of consideration. Again Section 29 stated that the female
heirs will be entitled to share in the intestate’s property only in the absence of male
heirs. It is to be noted that certain Christian Communities were exempted from this
provision.79
Meanwhile the Indian Succession Act 1925 was enacted for governing the
Succession matters of Indian Christians. However this Act was not extended to
Travancore because of the saving clause contained under Section 29 of the said Act.
However for the Christians in Malabar the 1925 Act was applied because Malabar
was in the Madras presidency during the British rule. The 1925 Act has become
outdated and antique. Section 37 of the Act provides for equal distribution of the
intestate’s property among the children after deducting the 1/3 share of the widow.
The Patriarchal Christian community opposed the introduction of 1925 Act because of
the above provisions under Section 37. Hence the Travancore Christian Succession
Act 1916 continued to be in force even after the commencement of the Constitution
until these discriminatory provisions were challenged by Mrs. Mary Roy in Mary Roy
v. State of Kerala80.
In Mary Roy the Court held that Part B States (Laws) Act 195181 excluded
the operation of the Travancore Christian Succession Act 1916. Hence the court
79
80
81
The Latin Christians living in Karunagappally, Quilon, Chirainkil, Neyyattinkara are governed by
their customary laws.
(1986) 2 SCC 204.
Section 6 repeals and savings provides for repealing the corresponding Acts and ordinances in
force in Part B States.
18
declared that the Travancore Christian and Cochin Christian Succession Acts stood
repealed because of the extension of the Indian Succession Act 1925. It is pertinent to
note in this context that the Supreme Court hesitated to declare the discriminatory
Sections82 as unconstitutional. Even though the 1916 Act is repealed, the system of
giving dowry to Christian women continued because the Patriarchal community was
not willing to confer inheritance rights to the Christian women. Ever since Mary Roy
verdict, the tendency to write wills also steadily increased. The father can will away
his property to the son/sons. The daughter/daughters are excluded from testament on
the ground that they were given their share in the form of amount at the time of
marriage.
The Indian Succession Act 1925 grants absolute testamentary capacity to the
testator so that he can disinherit daughters. The same Act under section 37 provides
for equal distribution of the intestate property if the father dies intestate. Further a
Christian father can also partition his property. He can partition the property among
son/sons excluding daughter/daughters on the ground that they were given stridhanam
as their share. Above all to circumvent section 37, the Patriarchal community adopted
the innovative device of getting release deeds from the daughters at the time of
marriage. The daughters sign the release deeds without fully knowing its serious
consequences that they are relinquishing their inheritance rights in the natal family
forever. Moreover, the stridhanam given to the daughter is to be handed over to the
husband or father-in-law at the time of marriage. The wife is not entitled to own
property or assets. The community always wants to deprive the women of economic
independence. They should remain obedient, subjugated and subordinate in the
82
Sections 24, 28, 29 of the Travancore Christian Succession Act 1916.These discriminatory
sections were challenged in Mary Roy.
19
matrimonial home. Even the share allotted to the widow will be administered by the
son because as per Manu’s dictates a woman never deserves financial freedom.
It is pertinent to note here the impact of Mary Roy case which paved the way
for the Indian Succession (Amendment) Act 2002, as per the recommendation of the
Law Commission of India in its 209th report.83 Taking inspiration from the Mary Roy
verdict, the Law Commission of India, the members of Parliament belonging to
Christian Community, Kerala Women’s Commission and other NGOs made
representations to the Government for the deletion of explanation to section 32 and
section 213 of the Indian Succession Act 1925. The Act has excluded a Christian
widow from her distributive share on the basis of the contract made at the time of
marriage84.
The Indian Succession (Amendment) Act 2002 amended section 32
(devolution of such property) and section 213 (right of executor or legatee when
established) of the Indian Succession Act 1925. Explanation to Section 32 was
omitted thereby relieving a Christian widow from the bar to succeed to the
distributive share of her husband’s estate even if there was a valid contract made to
that effect before her marriage. Again the Amendment Act 2002 made Section 213
inapplicable to Indian Christians85. Explanation to Section 32 (of the Parent Act)
provided that a widow is not entitled to the provision hereby made for her if, by a
valid contract made before her marriage she has been excluded from her distributive
83
84
85
Law Commission of India, 209 th Report on proposal for omission of section 213 from the Indian
Succession Act 1925,2002
This section is a reflection of an English rule that a widow’s title under the Statute of Distributions
may be barred by a settlement before marriage. See Dr. Sebastian Champappilly, Christian Law
of Succession in India,79,( Southern Law publishers Cochin,1997)
State of Kerala had amended section 213 of the 1925 Act in 1996. Section 2 of the Indian
Succession (Kerala Amendment) Act, 1996 provides: In sub-section (2) of section 213 of the
Indian Succession Act 1925, after the word Muhammadans the words `or Indian Christians’ shall
be inserted. It obtained President’s assent on 8.3.1997.
20
share of her husband’s estate. Except these two amendments no other changes have
been made in this outdated Act.
The plight of Christian women is pitiable when compared to Hindu women.
The Hindu women’s right to property was recognized under Section 14 of the Hindu
Succession Act 1956. The 1956 Act was again amended in 2005 to confer birth right
to Hindu women belonging to Hindu Mitakshara Joint family. The Act also removed
the discrimination between married and unmarried women. The Christian women in
fact undergo double discrimination because the State amendments to the 1956 Act
conferred coparcenary status to Hindu women in the Southern States and
Maharashtra86. So Hindu women have been conferred gender equality in the matter of
inheritance at least on paper. With respect to Muslim women the Quran assures them
a share in the parental property when the father dies intestate.
In spite of these unfortunate situations, Christian woman rarely goes to court
claiming her share. She values more her ties with natal family than she gets from
them. She gives priority to the emotional attachment to the natal family. This is
because she thinks that the natal family is her last resort to come back in case her
marriage breaks down. Here also she is forced to live there as a destitute. There is no
law to provide her right to residence as in the case of Hindu women. Her life in the
matrimonial home also becomes undignified because whatever stridhanam she has
brought would be appropriated by husband and in-laws because there is no law to
protect her assets with her.
86
The Kerala Joint Family system (Abolition) Act 1976, The Hindu Succession (A.P.Amendment)
Act 1986, the Hindu Succession (The Tamilnadu amendment) Act 1989, The Hindu Succession
(Karnataka Amendment) Act 1994, the Hindu Succession (Maharashtra Amendment) Act 1994.
21
Hence the researcher attempts to bring forth the breach of guarantee of
equality and equal protection of law in the matter of inheritance rights of Christian
women in Kannyakumari District of Tamilnadu where more Syrian Christians are
residing and Kottayam District of Kerala.
IV REVIEW OF LITERATURE
The clarion call for equal rights for women was initially trumpeted in US and
UK towards the end of the 18th century. Even though there were several reasons for
this uprising of women, the movement gained rapid momentum with the World WarII and, the Declaration of General Human Rights in France and United States which
led to the demand for equal rights for women, especially the right to vote, right to
enter into any profession, economic independence and freedom from oppression.
Any study of feminist movement for gender equality would not be complete
without mentioning the Seneca Falls Convention. The Convention was the first
national Women’s rights convention held at Seneca Falls in New York in 1848. It
turned out to be a pivotal event in the continuing story of US and women’s rights.
Seneca Falls convention was organized by two US women, Elizabeth Cady
Stanton and Lucretia Mott. While they were attending the meeting of the anti-slavery
society in London, they were denied opportunity to speak or to be seated as delegates.
They left the hall and soon realized the fact that while they were fighting for the rights
of African Americans, American women were themselves treated unequally. So they
immediately convened a convention for achieving equal rights for women with men.
Towards the end of the 19th century the campaign for women’s rights in
America and Europe focused chiefly on the right to vote as a symbol of equality. The
battle for right to vote was won in 1920 in US, 1928 in UK and after World War-II in
22
France. Consequently the US banned the sex discrimination in employment by
enacting the 1964 Civil Rights Act. In 1972 the US Senate adopted an amendment
prohibiting all discrimination on the ground of Sex.
Gradually the battle for Women’s freedom spread across the world. Women
themselves have realized their role in eradicating subjugation and oppression of
women. They also found that the root cause of women’s subjugation has been their
economic dependence on men. They also learned that there could not be equality of
sexes so long as women were denied the opportunity to earn their own living, asking
men money signifies subservience and an inferior status.
In 1947, to improve the Status of Women, the United Nations established the
Commission on the Status of Women (CSW) to promote women’s equal political,
social, economic and cultural rights. Again in 1975, the UN launched the decade for
women, a ten year effort to address women’s issues. The Decade for women
culminated in the 1985 UN Nairobi conference and in 1995 the Beijing Conference.
Even though women’s movements were initiated to achieve economic
independence and freedom from oppression and subjugation, only very few studies
have been made on Women’s Property Rights and gender justice. The existing
literature is mainly on the personal laws of different communities in India. The
Succession laws of these communities are based on custom, religion and tradition and
because of that these laws are discriminatory and unfair to women.
Dr.Sarala Gopalan (former Secretary to Government of India, Department of
Women and Child Development) in her essay titled: “Women’s entitlement to
property” published by Times Foundation, 1997 states that empowerment of women
leading to an equal status in society hinges among other things on their right to hold
23
property. She recommended for the abolition of section 15 and 16 of the Indian
Succession Act 1925 which link women’s domicile with that of the husband. The
legal reforms so far have not been adequate to give all Indian Women a right to
property on the same terms as men. Even where law has given a right, conventions
and practices do not recognize them. Women or daughters, wives, daughters-in-law,
mothers or sisters tend to lose out and often suffer deprivation. Therefore she called
for a social reform movement for creating awareness and change in mind set.
Dr.Sebastian Champapilly (1997) in his book Christian Law of Succession in
India (Southern Law Publishers. Cochin) made an earnest attempt to include all the
State and National law regarding Christian Succession. He traced the origin and
development of Christian Law of Succession in British India in the first chapter. After
the conversion of Hindus to Christianity, the converted Christians were following the
customs and traditions of Hindus. So the Portuguese and then the British tried to bring
in the Western concepts of law to be applied to the Christians in India. He also
included the State Succession Laws for Kerala converted Christians, the Travancore
Christian Succession Law (1916) and the Cochin Christian Succession Law (1921).
Later the Indian Succession Act 1925 was enacted for regulating the inheritance of
Christians all over India except Travancore and Cochin. A separate chapter has been
set apart for the Landmark case Mary Roy v. State of Kerala (1986) 2 SCC 209 where
the Supreme Court declared unconstitutional the discriminatory provisions in the
Travancore Christian Succession Law (1916).
“On legal bondage, women’s struggle for Justice (1985) published by
WINA India (WINA was started by a group of women) contains articles by Stella
Faria, Annie Thayil, Anna Alexander and Aruna Gananadason. Stella Faria criticizes
the archaic, western oriented, Patriarchal anti female Christian law. The experiences
24
of Christian women show that they reel under the pressures of injustice and inequality
perpetuated by the first century male dominated culture.
Annie Thayil also attacks the patriarchal system still being practiced in
Christian families. The father being the head of the house is the sole proprietor of the
family property and therefore he can will, gift or dispose of it as he deems fit. The
question of the rights of family members arises only if he dies intestate. Sons and
daughters are born to the same parents. Then why should there be a difference in their
rights to property of their parents? The bias against women is so strong in the present
family structure which is determined to keep women powerless and dependent on
men. Middle class families will happily spend lakhs of rupees and give lavish dowries
on marriage of daughters, but will not give even a small portion of all that money to
their daughter in her own name, under her independent control in the form of land or
other income generating property. In the present family system women are mainly
used as commodities, as vehicles for transfer of consumer forms of property from one
family to another. In fact control over women, as over slaves is passed from one
owner, the parent’s family to the other, the husband’s family. Women seldom acquire
any real control over even what is customarily supposed to be theirs.
Bina Agarwal, Professor of Economics, Delhi University in her article
“Marital violence, Human Development and women’s property status in India”
(Written with Pradeep Panda Cambridge University Press.1994) concludes that
women’s ability to own and inherit land acts as a deterrent against marital violence.
“A field of one’s own” is her famous work where she again stresses the importance of
land, inheritance and ownership in India arguing that the single most important factor
affecting women’s situation is the gender gap in command over property. In another
25
article “Home and the world: Revisiting violence,” Agarwal and Panda charge India
with dealing marital violence and suggest reformation of land ownership and
inheritance laws. The Government of India spurred on by Agarwal’s work passed the
Hindu Succession (Amendment) Act 2005.
Law and gender inequality by Flavia Agnes (1998), Oxford University Press)
is a study mapping the issue of gender and law reform which could safeguard
women’s rights. She traces the origin and development of family law in India since
colonial rule and calls for reformulation of religious personal laws to accord gender
equality. Her focus is on eradication of gender inequality from the family laws of all
religious communities.
Js.S.Rajendra Babu in his lecture on `Gender Justice Indian Perspective’
(2002) 5 SCC J-1) laments that in spite of 50 years of post independent
democratization, preferential rights in the Constitution and legislative enactments are
still stuck in the century old mould. The major reason for this status quo is the
patriarchal system where women themselves collaborate. They are getting entangled
in the primary role of home makers. He finds fault with the women folk for acquiesce
to the role of home maker. Hence he calls women to come out of the shell of feminity
and assume a more activist role of promoters of social transformation that can alter
the lives of both women and men.
Sindhu Thulasidharan in her project “Christian Women and Property Rights
in Kerala – Gender Equality in Practice” (2004) also looks into the property rights of
Christian women in Kerala. Her study revealed that denial of equal rights to property
continues among all sections of Christian community. The successive legislative
reforms introduced to achieve full equality have not so far advocated gender equality.
26
The object of her study is to provide information regarding various legislations
relating to succession laws passed from time to time.
She has divided the project into six chapters. First she covers inheritance up
to 1916, in the second she discusses the dispute on questions regarding inheritance up
to 1916 and inheritance between the periods 1916 and 1986. In the fifth she made an
analysis of Mary Roy v. State of Kerala. She concludes the project with the note that
the dowry system still continues. Even now the share of the daughter is given either in
‘gold or in cash’ in Kerala.
Indira Jaising (2004) in her essay ‘Unequal reform’ (is dealt in the third
chapter) heavily came down on the Government’s proposed amendments to the Hindu
Succession Act by saying that: “It will do little for women as a whole”; do we need
reform for Hindu women or for women generally, regardless of the religion to which
they belong, what exactly constitutes reform; what does gender justice mean for
women in the realm of family laws. The Government has decided to give a fair deal to
Hindu women in the matter of inheritance forgetting other women. There seems to be
no stated public policy objective as to whether only Hindu law needs reform to make
it gender just and no other laws.
She looks at succession law in general. Universally succession is either
testamentary or intestate. In all most all the countries of the world a person has the
right to make a will in relation to his or her property in favour of any one. Muslim
personal law places a restriction on the extent of property that can be willed, leaving
the other portion to devolve on heirs. Only one-third of a man’s property can be
willed, two thirds will devolve on Koranic heirs who include children and parents.
Female heirs inherit half that of male heirs.
27
In Christian law the intestate succession to all property is determined by the
Indian Succession Act 1925 under which the heirs inherit equally. However a man
could by will bequeath his or her property to anyone totally disinheriting his own
children and widow. She also attacks the reason given for the proposed amendment.
The reason is stated to be the guarantee of equality under Article 14 and 15 of the
Constitution as a justification for the amendment. This exercise reinforces the system
of separate and discriminatory personal laws. This gap is to be filled by law reform.
Praveena Kodoth and Mridul Eapen in their study ‘Looking beyond gender
parity, Gender inequities of some dimensions of well-being in Kerala (Economic and
Political weekly, July 23, 2005) bring forth the negative trends in women’s property
rights and the rapid growth and spread of dowry and rising gender based violence.
The notion of dowry has gained a wide spread acceptance in the State. Movable
property particularly cash and gold is taking preference to land. Women do not have
control over their dowry since it is being used to support the needs of the husband’s
family and women do not get right to property because of the Patriarchal setup.
‘Property Rights of Indian Women’, (2008) Shruti Pandey deals with the
unequal and unfair property rights of Indian women. Indian women still continue to
get fewer rights in property than the men both in terms of quantity and quality.
Moreover in the matter of property rights, the Indian women are highly divided
among themselves. In the absence of a uniform civil code every religious community
continues to be governed by its respective personal laws. Therefore the property rights
of Indian women hinges on her religion and religious school she follows; whether she
is married or unmarried, which part of the country she comes from; whether she is a
tribal or non-tribal. The undisputable fact is that the property rights of Indian women
are immune from Constitutional protection even though the property rights are in
28
several ways discriminatory and arbitrary. The courts are also reluctant to test the
personal laws on the touchstone of Constitution and to strike down these laws which
are clearly unconstitutional.
Flavia Agnes in her article “Constitutional challenges and communal hues”
(Combat law, vol.7, issue 6, Nov-Dec.2008) challenges the discriminatory personal
laws. The essay explores the complex terrain of gender justice and legal pluralism.
She argues that enactment of a special Code Bill to codify Hindu personal laws
violated the principle of equality and non-discrimination under Article 14 and 15 of
the Constitution. She also attacks the Hindu male’s right to will away the separate
property. She also analyses the approach of the Courts towards personal laws. She
quotes the observation of Delhi High Court (Harvinder Kaur Vs. Harminder Singh,
AIR 1984, Del 66) Introduction of Constitutional law in the home is most
inappropriate. It is like pushing a bull into a china shop. It will prove to be a ruthless
destroyer of the marriage institution and all it stands for. In the privacy of the home
and married life, neither Article 21 nor Article 14 has any place.
Dr.Susan Mathew also was awarded her doctoral degree in 2010 for her
thesis titled “Inheritance Rights of Syrian Christian women: A study in Kerala.” It is a
sociological study on the inheritance Rights of Syrian Christian women. In her
introductory chapter she deals with the existing practice of denying property rights to
women especially Christian women due to the deep rooted patriarchal ideologies. She
has brought to light the privileges enjoyed by women in matrilineal system, where the
succession of property is through mother. Her thesis consists of eleven chapters. In
the subsequent chapters she deals with theoretical perspectives along with review of
literature on inheritance and dowry related matters, origin of Christianity and the
inheritance rights of Christians in Kerala. In the remaining chapters she discussed
29
socio-economic and demographic characteristics of Syrian Christian women, critical
analysis of gender empowerment in Kerala empirical study, respondents’ level of
knowledge and attitudes towards inheritance rights case studies. The last chapter is
the conclusion.
Even though the study is on the inheritance rights of Syrian Christian
women, it is only a sociological research. The study is not based on violation of right
to equality under Article 14 of the Constitution. She has also not considered the
double discrimination against Christian women first on the basis of sex, second on the
basis of religion. With the Hindu succession (Amendment) Act 2005, the Hindu
women are given birth right in the ancestral property. No such legislation has been
brought about in favour of Christian Women. Similarly her study is confined to mere
factual situations. The legal aspects of property rights, the approach of judiciary and
the question of law involved in cases dealt by the courts are not dealt in her study.
The above review brings forth, the fact that women’s issues have gained
global attention as early as 18th century. It has resulted into the creation of volumes of
literature pertaining to gender inequality, women’s subjugation and denial of
inheritance rights, lower status in the public and private sphere. The discrimination
and disparity in the property rights of Hindu, Christian and Muslim women are also
on the center stage. An in depth analysis of these studies underscore the following
aspects.
i.
The studies invariably addressed the dependent status of the women in
spite of her education, employment, availability of resources,
awareness of gender parity and gender justice. There is no difference
of opinion about the continuance of gender injustice in all spheres. The
writers and feminists unanimously agree that the root cause of
women’s oppression and subjugation is due to the continuance of
religion based personal laws.
30
ii.
The studies have also looked into the amendments made in the Hindu
Succession laws to confer birth right to Hindu women in the joint
family property. So there is discrimination on the basis of religion
because no effort has been made to improve the status of either
Christian or Muslim women.
iii.
Patriarchal studies have also looked into the aspect of giving dowry in
the form of ‘gold or cash’ and the reluctance of parents to give
property or cash in the name of the daughter. The cash or gold will be
absorbed into the husband’s family and the daughter cannot claim it as
her own money.
iv.
The studies have also made inroads into the Indian Succession Act
1925 which was enacted during the colonial rule. The father/husband
can will, gift or dispose of his property in whatever way he wants. That
means he can even disinherit the children or spouse. The absolute
testamentary power is a western legacy.
v.
The studies also reveal that the Christian women would hardly go to
Court to file cases against family members. The only woman who
challenged the Travancore Christian Succession Act 1916 was Mary
Roy from Kottayam District of Kerala in the year 1986. Therefore the
case regarding property disputes between Christian women and her
family members are very rare.
With these issues unfolding in the review of literature in the form of books,
articles, seminar papers, the present study seeks to examine the under mentioned
objectives.
No comparative study has ever been made in the status of Christian, Hindu
and Muslim in their respective personal laws. Their status is totally different because
of the unequal provisions in the customary personal laws. Moreover no empirical
study has been made regarding the property rights of the elite Catholic families in
Kottayam District and Kannyakumari District in Kerala and Tamilnadu respectively.
It is pertinent to quote here the opinion of Indira Jaising 87 on the Bill for the Hindu
87
Indira Jaising,`` Unequal Reform``, No.104,Communalism combat,( Jan 2004)
31
Succession Amendment (2004). She came down heavily by saying that “Do we need
reform for Hindu women or for women generally.”
A review of the existing literature on Christian women’s right to property
reveals that a comparative study of the property rights of women under the personal
laws in the light of the Hindu Succession (Amendment) Act 2005 has not been made
so far. Hence the researcher felt it necessary to make a thorough analysis of the
property rights of Christian women comparing it with that of Hindu and Muslim
women. Hence the researcher has selected this topic. It becomes more prominent in
the light of the Government of India’s formulation of the National Policy for the
Empowerment of Women 2001. Hence it will be appropriate to make a critical
appraisal of the inheritance rights of Christian women in their respective personal
laws. The present research is directed towards this end.
V Concept of Gender Injustice in the Matter of Inheritance Rights
Gender Justice means that no one be denied justice or discriminated only
because of one’s gender (sex)88. Gender injustice refers also to the obvious or hidden
disparities among individuals based on the performance of gender89. This problem in
simple terms is known as Gender Bias which simply means gender stratification or
making difference between a girl and a boy, i.e., male or female. In making biasness
among gender India has 10th rank out of 128 countries all over the world, because
88
89
Jyoti Rattan,`` Uniform Civil code in India: A binding obligation under International and Domestic
Law’’ ILI – Vol, 46, 578( 2004)
Anne Mary Mooney Cotter, Gender Injustice: An international Comparative analysis of Equality
in Employment, (Ashgate Publishing House England, 2004)
32
since long back women were considered as an oppressed section of the society and
they were neglected for centuries90.
Family relations in India are governed by personal laws that reflect glaring
gender inequalities and discrimination against women. Hindus, Muslims, Parsis and
Christians have their own personal laws. In all these personal laws except Hindus,
women have fewer rights in matters of marriage, divorce, adoption, guardianship and
succession than men in similar situations. So the women of the minority communities
continue to have unequal legal rights. Besides that women are kept under
subordination through the powerful instrument of religious traditions and customs
which are perpetuated through these personal laws91. The Government of India has
chosen to ignore these discriminatory practices under the guise of personal laws
.However influenced by the work of CEDAW the Government of India has finally
declared that it would make an effort to regulate gender-biased customary practices in
conformity and with its policy of non-interference in the personal affairs of any
Community without its consent 92. As far as Christian women are concerned the
Church and the Community are highly patriarchal. The Church through its Canon
Laws are propagating subjugation of women with the tacit support of the patriarchal
Community. It is pertinent to note that even the Church actively participated in the
propaganda against Mary Roy Verdict.
1 Types of Gender Inequalities
There are many types of gender inequality between men and women. Gender
inequality can take different forms. This issue has been publicly reverberating through
90
91
92
Ibid.
Uma Chakravarti, “Conceptualising Brahmanical Patriarchal Early India” Vol 28, No.14,
Economic and Political Weekly,579-585( April 3 1993)
Kirti Singh ,Obstacles to Women’s rights in India, 160,(Martinus Nijhoff Publishers2008)
33
society for decades. Dr.Amartya Sen93 has classified gender inequality in the
following way
(a)
Natality Inequality
In this type of inequality a preference is given for boys over girls. Gender
inequality can manifest in the form of parents wanting the newborn to be a boy rather
than a girl. Due to the availability of modern techniques to determine the gender of
the fetus, sex selective abortion has become more common in South Asia, India and
China94.
(b)
Professional or Employment Inequality
Professional or employment inequality is a great handicap for women
especially in the matter of promotion to higher levels.
(c)
Ownership Inequality
In India the ownership of property is unequal because the family is governed
by Patriarchal System. Even married women are denied ownership of home and land
whereas unmarried daughters can enjoy ownership of home and land after the age of
35. When the property rights are denied to women their voice will be reduced and it
would be difficult for them to enter into social or economic activities 95.
(d)
Household Inequality
Gender inequities are very common within the family or household. The
family arrangements are quite unequal when it comes to sharing the burden of house
93
94
95
Amartya Sen, “Many faces of Gender Inequality’’,The Frontline, Vol. 18-Issue 22,Oct 27,( 2001)
Ibid.
Ibid
34
work and childcare. Men naturally work outside the home. Women can take up
outside jobs if she can manage her routine unavoidable, household duties.
Consequently there will be unequal relations within the family and lack of recognition
outside the world96.
(e)
Special Opportunity Inequality
Even though there is no discrimination in basic facilities including schooling,
the opportunities for higher education may be fewer for young women than young
men. So there is gender bias in the matter of higher education and professional
training even in rich countries including India
2. Patriarchy and Gender Inequality
Religion has also played its due role in perpetuating Patriarchy. The most
popular creation story in Genesis is misinterpreted to say that there was a hierarchy in
the creation of human beings. The fact that Adam was created before Eve has been
used to justify men’s superiority97. It has been used as a tool to perpetuate inequality.
In fact in Genesis God said that we will make human beings; they will be like us and
resemble us… so God created human beings making them to be like him. He created
them male and female98. Similarly St.Paul citing Genesis 2 of Bible states that while
man is the image and glory of God, woman is the glory of man, the man was created
for women’s sake, but the women for the sake of man99. During the Christian
96
97
98
99
Ibid.
Genesis 1:26.
Ibid.
Cor:11:7,9.
35
marriage ceremonies, the Priests quote: Therefore as the church is subject into Christ,
so let the wives are to their own husbands in everything 100.
(a)
Origin of Patriarchy
All the studies to trace the origin and development of discrimination against
women end with the finding that it is traditionally enrooted in patriarchy. Walby101
says how patriarch operates to achieve and maintain the gender inequalities essential
for the subordination of women. According to him Patriarchy is a system of social
structures and practices, in which men dominate, oppress and exploit women.
(b) Definition of Patriarchy
The word “Patriarchy” literally means the rule of father or the Patriarch and
originally it was used to describe specific type of male dominant family. Patriarchal
tradition can be traced back to Ancient Greece. Aristotle in his work The politics
opined that man is the head of the household; that it is he who holds authority over his
wife and children… for the male is more fitted to rule than the female, unless
conditions are quite contrary to nature102. Bacon also said that the husband hath by
law power and dominion over the wife and may beat her, but not in a violent or cruel
manner103. Luce Irigaray in her “Bodily Encounter with the mother”104 wrote that
their discourses, their values, their dreams and their desires have the force of law,
100
101
102
103
104
Timothy, 2/14.
Sylvia Walby,Theorising Patriarchy,473,(Blackwell,1990)
Aristotle, The Politics ( London, Penguin,1962),as quoted in Hilaire Barnett,Introduction to
Feminist Jurisprudence,57,( Cavendish Publishing Ltd., London,1998)
Ibid at 57,
Ibid at 57
36
everywhere and in all things. Everywhere and in all ways they define women’s
function and social role and the sexual identity they are or are not, to have.
In the 19th century John Stuart Mill also regarded the relationship between
the sexes as one of legal subordination of one sex to the other. In his view this
subordination of women by men had been passed down through history. Women were
subjugated by Man on the basis of their physical inferiority and in course of time it
had been absorbed as a rule of law. For Mill marriage remained the last vestige of
slavery in society after the abolition of slavery105.
(c) Patriarchy in India
In India Patriarchy is perpetuated through religion and custom based
personal laws. Religion, traditional and cultural values always safeguard the interests
of Patriarchy which operate through family norms106. The father/Husband rules the
family and exercises absolute control over all members of the family. The wife is
strictly tied to him with the lifelong duty of obedience.
In 1971, the Government appointed a committee on the status of women to
examine the impact of the Constitution, legal and administrative Provisions on the
Status of women. The Committee in its report stated that cultural patterns and forms
of Patriarchy all too often collude to keep women in subordinate position. The states
in India give tacit support to patriarchal forces by not enforcing its own laws and
program which challenge the basic gender equality107.
105
106
107
Mill, JS, The Subjection of Women,119(Cambridge,1989)
Uma Chakravarti, “Conceptualising Brahmanical Patriarchal Early India, Gender Caste, Class and
State,28 Economic and Political weekly, 579-585(April 1993)
Lina Gonsalves, Women and Human Rights ,234(APH Publishing House, New Delhi, 2008)
37
It is pertinent to note here the report of the Law commission relating to
marriage and Divorce among Christians in India. The Commission noted that the
husband can sue the wife’s paramour for damages because the commission thought
that the continuation of such discrimination was right since it had been practiced for
centuries. The rationale behind this provision is that the wife is the property of the
husband and therefore he is entitled to claim damages. This bears testimony to the
extraordinary reluctance to question and expose the deprivation of women’s rights
even this day108.
Similarly there is a deep rooted reluctance on the part of the Government as
well to radically change the existing socio-economic political order that concerns
gender relations. This reluctance is apparent in the Government’s contradictory
policies109. On the one hand women are encouraged to participate in national
Development and on the other hand woman is exhorted to uphold traditional values
and conform to traditional stereotypes. Even courts also give credit to custom while
pronouncing the judgment relating to women110.
(d)
Socialization
The entire process of socialization of females is to internalize the concept of
dependency which cripples the development of their personality 111. Even in early life
women are conditioned to accept their subservient role. The United Nations’ study
found that differences in sex roles begin at the moment of birth when the child is first
108
109
110
111
Janaki Nair, Women and Law in Colonial India.’ A social history,189( Kali for women in
collaboration with the National Law school of India, Bangalore1996)
The 90th Report of the Law Commission of India on The Christian Marriage and Matrimonial
Causes Bill,1960.
Ibid.
Jivika Marinova, ``Gender Stereotypes and the Socialisation Process`` 2,available at www. un. org
(Accessed on 22.3.2012)
38
identified as a male or female. From that moment the child is expected to behave in
accordance with the roles customarily assigned to his or her sex. By the time the girl
becomes an adult she finds that her world has been restricted by the rules and
expectations of others. She learns that being born female keeps her different from men
and reduces her rights in law and in practice112.
(e)
Patriarchy under Personal Laws
Personal laws refer to a range of religion based family laws governing
marriage, separation, inheritance, maintenance and adoption. These personal laws
vitally affected the status of Indian Woman. These laws define, control and limit the
rights of women within and outside families113. Indian feminists are of the view that
the continuance of plurality of personal laws was undoubtedly harmful to the social
and legal status of women114.
All these personal laws are patriarchal and they are instituted and
implemented by men. The State was also very anxious to prevent any serious
dislocation of Patriarchal familial arrangements115. Moreover the guarantee of
freedom of religion under Article 25(1) of the Constitution leaves personal laws
strictly alone where women are discriminated against in the most fundamental ways.
Large sections of women are denied equal inheritance rights to property, to rights
within the family, to maintenance, to divorce, guardianship and adoption116.
112
113
114
115
116
See supra note 105 at 36
Archana Parashar,Women and Family Reform in India , 104(Sage publications,1992)
Kumkum Sankari,``Politics of Diversity among Religious Communities and Multiple
Patriarchies``,Economic and Political Weekly,vol-xxx no.52, 3288( Dec.23,1995)
Ibid.
See supra note 82 at 190
39
Government of India has openly admitted before the committee on the
Elimination of Discrimination against women (CEDAW) that the personal laws of the
major religious communities had traditionally governed marital and family relations
with the government maintaining a policy of non-interference in such laws in the
absence of a demand for change from individual religious communities117.
India has to submit periodic compliance reports to this committee. The
Committee also expects India’s compliance to the provisions of the said international
instrument and noted that steps have not been taken to reform the personal laws of
different religious and ethnic groups so as to conform to the convention118. The
Committee also warned that the Government’s policy of non-interference perpetuates
sexual stereotypes, son preference and discrimination against women119.The
Committee further urged the Government to withdraw its declaration to Article 16,
Paragraph 1 of CEDAW and to work with and support women’s groups in reviewing
and reforming these personal laws120. The convention expected the Government to
follow the Directive Principles of State policy in the Constitution and enact a uniform
civil code that is acceptable to the different ethnic and religious groups121.
Again the Human Rights Committee that monitors the compliance of
International Convention on Civil and Political Rights 1996 also took note of the third
periodical report of India and observed that women in India have not been freed from
discrimination and expressed serious concern about personal laws which are based on
117
118
119
120
121
United Nations Report of the Committee on CEDAW supp. No.38 A/55/38,8, General Assembly
official records, New York, 2000.
Ibid.
Ibid at 10.
India’s Declaration to CEDAW under Article 5(a) and 16(a) of CEDAW, the Government of the
Republic of India declares that it shall abide by and ensure these provisions to be in conformity
with its policy of non-interference in the personal affairs of any community without the initiative
and consent.
See supra note 89 at 160.
40
religious norms that do not accord equality in respect of marriage, divorce and
inheritance rights and stressed that the enforcement of personal laws based on religion
violates the right of women to equality before law and non discrimination122 Hence
they recommended to the Government of India that efforts be strengthened towards
the enjoyment of their rights by women without discrimination. It was also urged that
the personal laws must be reformed to make it fully compatible with the covenant123.
(f)
Patrilineal Families in India
As discussed above personal laws perpetuate Patriarchy and the State is also
not willing to prevent any serious dislocation of Patriarchal familial arrangements. In
this context, it is worthwhile to examine some of the adverse features that Indian
women undergo in the Indian Patriarchal System.
i.
The woman is always a social dependent.124
ii.
Her worth is measured in terms of the ability to produce male children
through whom the patrilineality is perpetuated.
iii.
She has no share in the property due to the strong force of custom and
tradition.
iv.
A woman does not belong to her father’s family while membership in
the husband’s family is conditional to her proper behavior.
v.
Women have no direct participation in high religion though they have
the principal obligation to arrange, observe and continue the local
traditions, and responsibilities while men have power.
vi.
122
123
124
Women are controlled by the family in every aspect of their life 125.
See supra note 111 at 233
Ibid.
See supra note 89 at.144.
41
3. Status of Women in Matrilineal families
Matrilineal families exist among the Nayar Community in Kerala and the
Muslims of Lakshadweep (Scheduled Tribes). A typical matrilineal joint family in
Kerala called ‘Tharavad’ is formed by a woman, her sons and daughters, and
daughter’s sons and daughters. The woman is not dependent on her husband nor does
she derive her status from him. She has dignity and rights which cannot be ignored
even when a male like her brother may assume a position of authority as her manager.
The husband is never fully incorporated into the family unit and does not enjoy any
rights over his children or wife’s property126.The Nayar women did not engage in any
productive work yet enjoyed full property rights and inheritance and succession is
continued through women. The Muslims of Kerala called Mapilas also provide the
daughters the right to share in the parental property. They have the custom of
marriage between close relatives so that the property remains within the family127.
Some of the typical features of the matrilineal family in contrast to
Patrilineal families:
(i)
Women are not social dependents on men.
(ii)
They are the perpetrators of the family line and the children owe their
social placement through the mother.
(iii)
They acquire their share in the movable and immovable property and
also acquire positions of authority through her.
125
126
127
Ibid.
See supra .note 89 at 145
Ibid
42
(iv) Women are not under social pressure to produce male children or to
prove their fertility as a pre-condition to their position in the family.
(v)
She has important religious and social responsibilities which she
fulfills as the heiress of the family property.
(vi) She controls her own life and her children. In case of breakdown of
marriage, children remain with her128.
4. Gender Inequality- Feminist Perspective
Gender inequality in societies exists due to various factors like cultural,
historical, political, religious and legal. Feminists all over the world subscribed the
view that from time immemorial women’s reproductive and nurturing role have
resulted in women being considered as different from men and they were viewed as
the ‘other’ who always were unequal129.
In the 1960’s anthropologists like Bradislaw Malinowski argued that women
from the earliest times had been assigned by men the child-bearing and child
nurturing role130. Property was not vested in the female and it was controlled by men.
Hence a brother, instead of a sister had power over the property. Marxist political
philosopher Fredric Engel was of the view that with the introduction of private
property, women were confined to the private sphere of life and this patriarchal
tradition denied women full participation in public life also 131. Patriarchy is the one
factor that was being accepted by all feminists as the root cause inequality.
128
129
130
131
Ibid.
Hilaire Barnett, ‘Introduction to Feminist Jurisprudence’,29( Cavender Publishing Ltd,1998)
Ibid at 29
Engels, F. The origin of the family; private property and the state (1884), 1940, London, Lawrence
and Wishart,1884)As quoted from Hilaire Barnett, Introduction to Feminist Jurisprudence,
29,(Cavending publishing Ltd. London,1998)
43
(a)
Marxist Feminism
Marxist Feminists support the economic theories of Karl Marx. In the Origin
of the Family, Private Property and the State’, Fredrick Engels132 was of the view that
women’s oppression developed with the disappearance of matrilineal families. He
further pointed out that with the Patriarchal family, males gained power within the
family and society due to the development of agriculture. Through farming men
became property owners and wished to have a method to pass this property to
children. For this matrilineal descent had to end since men did not have clear heirs in
that system. Consequently matriarchal law of inheritance was overthrown and the
male line of descent and the paternal law of inheritance were substituted133.
Engels further pointed out that male oppression of females depend on
property rights and inheritance. According to him the only solution to end this
oppression is to eliminate this property rights. So long as men have property, women
would remain subordinate within the family134. Feminist saw support and inspiration
in Marxism because Marxism called for liberation of women from oppression. He
argued that mass revolution was impossible without female emancipation. Marxist
Feminist found that males were completely dominating every area including
‘thinking’. This resulted in women’s liberation movement in the late 18th century.
(b)
Liberal Feminism
Liberal feminism is an ideology of egalitarianism. Its proponents hold the
view that women are capable of performing in the public sphere despite their physical
132
133
134
The most important work and basic reference point is Engel’s ‘Origin of the Family, Private
Property and the State.’ Published in 1884 by Engels, a year after Marx’s death.
Supra note 114 at 126
Ibid.
44
differences135. This can be achieved by removing the inequality in law and society
because a legal system is framed on the basis of social norms that are always male
oriented. Hence law would become fair only if it is restructured to include women
also. The arm of law must be extended to private sphere.136.Women’s contribution to
the family in the form of domestic labour is left untouched by the State.
Liberal feminist like Mary Wollstonecraft,137 Betty Friedan138 advocated for
the elimination of practices and laws which effectively deny women access to public
sphere of life and confine women to the private sphere, the home. Men in turn took
control of public sphere including policy and law making. As a result women were
silenced and kept under constant subjugation139. Hence women would not get an
opportunity to raise their voice in public matters.
(c)
Radical Feminism
Radical feminists on the other hand focused on the problem of the Universal
dominance of men over women and the consequent subordination of women to
men140. Their aim was to challenge and to overthrow Patriarchy by protesting against
stereotyped gender roles and male oppression of women141. So they demanded for a
135
136
137
138
139
140
141
Daniel Walch, ‘What is liberal feminism’,available at: http://www.helium.com (Accessed on
12.09.10).
See supra note 127 at 128.
Mary Wollstonecraft, Vindication of the Rights of woman(Newyork 1792,1967).As quoted in
Hilaire Barnett, Introduction to Feminist Jurisprudence,98,(Cavending publishing
Ltd.
London,1998). She encouraged women to use their voices in making decisions separate from
decisions previously made for her. She ardently fought for women’s person hood.
Betty Friedan was a second wave feminist. She was an American writer, activist and feminist. She
was a prominent figure in the women’s movement in the US. Her book,`Feminine
Mystique’(1963)is rated as the second wave of American feminism in the 20th Century.
See supra note 114 at.124
Ibid.
Willis, ` Radical feminism and Feminist Radicalism’, 118 (University of Minnesota, press, 1984)
– Ellen Willis is the co-founder of Red Stockings.
45
radical restructuring of society. The western radical feminists assert that their society
is patriarchal which primarily oppresses women142.
They posit the theory that due to Patriarchy women are viewed as the ‘other’
and are always oppressed and marginalized. The only solution to deal Patriarchy and
oppression of all kinds is to address the underlying causes of these problems through
revolution. They also firmly believed that eliminating Patriarchy and other systems
which perpetuate the domination of one group over another will certainly liberate
everyone from an unjust society143.Radical feminists were the first to demand total
equality in the ‘private sphere’ which includes household work, childcare, emotional
and sexual needs144. They have also succeeded in bringing about Equal Rights
Amendment (ERA) in US 145.
Catherine Mackinnon, a prominent radical feminist views inequality as a
question of the distribution of power. The most important difference between women
and men is the difference in power, men dominate women and woman is subordinate
to men. She says that society and law is male. The State is male jurisprudentially
which means that it adapts the stand point of male power on the relation between law
and society146. She views gender issue as not one centrally concerned with analyzing
differences between men and women, rather she concentrates on distribution of power
between man and woman. Men have power women do not. Men dominate, women are
142
143
144
145
146
Ibid.
See supra .note 114 at 163
Ibid.
Shewta V.Yadappanavar,``Feminist Jurisprudence’ Vol XXXVII,Indian Bar Review,181(3.4.2010)
Mackinnon.C. Feminism, Unmodified, Discourse on Life and Law, 1987, Cambridge, 1987) see
supra note 127 at 165
46
subordinate and they are subordinated because they are women. 147 So she demands
eradication of gender hierarchy because the ‘difference’ strategy creates economic,
political and social subordination. Male using his power oppresses women. In the case
of women they are oppressed on the basis of their sex. Therefore radical feminists
find patriarchy as the root cause of oppression of women148.
Mackinnon also opposes the sameness theory149. The real issue is male
power and dominance. She cites domestic violence, rape, prostitution, pornography as
examples to show that these things happen only to women 150. Law, with its objectivity
and rationality, she says is a means to keep the status quo of male power and female
powerlessness. Men become dominant through ownership of property. Up on
marriage the wife’s property is transferred to the husband through the one flesh
doctrine. So she demands power for women. She also challenges the sameness
approach adopted by law by saying that sex is a natural difference, a division, a
distinction under which there is a stratum of human commonality, sameness
151
.
Similarly Shulamith Firestone from US in her book “The Dialictic of Sex” argues that
the sexual division of humanity into two distinct biological classes was the origin of
all other social divisions. She finds the solution for women’s oppression in modern
technology like birth control and gestation outside the womb152.
147
148
149
150
151
152
Ibid
Ibid.
The theory that we are same, we are same, we are same. For details see note 128 at 165
See note 128 at 139
See supra note 113 at 167.
Marxism, Feminism and Women’s liberation, available at: http:// www. bolshvik. org/ 1917/ no
19/fem.pdf. ( Accessed on 07.09.10.)
47
(d)
Cultural Feminism
Cultural feminism gained with the disappearance of radical feminism.
Radical feminism was a movement to transform the society, where as cultural
feminism aimed to build a women’s culture. It was an attempt to revalidate
undervalued female attribute153. They enquired the perceived differences between
women and men while analyzing the impact of women’s difference in socio-political
terms. 154
The chief proponents of cultural feminism are feminists like Nancy
Chodorow, Luce Irigaray, educational psychologist Carol Gilligan and Jane Adams.
They addressed the problem of suppression of distinctive or different female qualities,
experiences and values. They believe that the suppression of the female qualities is
the primary cause of women’s subordination. So their focus was not elimination of
patriarchy. They aim to create an alternative female consciousness for establishing
and nurturing women’s qualities155. Nancy Chodorow traces the development of
children to adulthood relying on sociological and psychoanalytical theory to explain
the phenomenon of mothering with men.156
Again Carol Gilligan in her research publication157 created a profound impact on
feminist theory. For her women are nurturing and value personal relationships and
153
154
155
156
157
Alcoff Linda, “Cultural Feminism versus post-structuralism: The identity crisis in Feminist
Theory.” 406(1988) The University of Chicago Press. Oct-Nov-2006,Jstor.org, Journal of women
in culture and society (1988.)
Ibid at139.
See supra note 151 at 406
Chodo row.N,The reproduction of mothering.Pschoanalysis and sociology of gender
(Berkely,1978)As quoted from Hilaire Barnett,Introduction to Feminist
Jurisprudence,144(Cavending publishing Ltd. London,1998)
Gilligan.C., In a different voice; Psychological theory and women’s Development,xxvi,
Cambridge, Harward University Press,1982)see supra note 156 at 146
48
these characteristics of women needed to be valued. She believes women are
inherently kinder and gentler. Luce Irigaray, the French Feminist on the other hand
viewed women as the ‘other’, the women who are ‘excluded’ 158. Further she neither
identifies woman as mother, nor do demands that women must be free themselves of
motherhood. In her later works she calls for changes in the legal order which will
facilitate the inclusion of women. She argues that laws and the legal profession are
male constructs which exclude women’s difference. Similarly the workplace is also
organized on male lines. In order to succeed in the male world women must conceal
their differences, must adapt to male criteria. So in order to achieve equality women
must conceal their differences and adapt to male criteria159.
(e)
Socialist Feminism
Like all other feminism, socialist feminism is theoretically centered around
Patriarchy which are the traditional rules exalting men and demeaning women. They
demanded the recognition of the economic value of child rearing and domestic work
by the State160. They believe that free labour is not in tune with the principle of
equality between individuals. As a solution they suggest payment for household work.
However the drawback in this suggestion is that it would result into woman becoming
the employee of her husband, which is totally inconsistent with idea of liberation of
women as free independent economic beings. This would further enslave women and
keep them confined to home161.
158
159
160
161
Luce Irigaray, Speculum of the other Woman, (1974. Cornell University Press, 1985).See supra
note 156 at 148
See supra note 156 at 151
Ibid at131
Pateman.C., The Sexual Contract,339-41, (London, polity1988).See supra note 156 at 140
49
Hence Socialist feminist agenda therefore includes recognition of the
economic value of unpaid domestic labour, equality for women in public sphere. They
also addressed the issue of women’s alienation, isolation and inequality in public
sphere162. The socialist feminists also included in their agenda the struggle for
women’s reproductive freedom, the right to choose motherhood or not, the right for
publicly funded child care in order to provide women employment opportunity in
public sphere; the recognition of the economic value of unpaid domestic labour163.
VI. STATEMENT OF THE PROBLEM
With an avowed object of making an in-depth empirical study of property
rights of Catholic women of Kottayam and Kannyakumari district the researcher has
selected the topic “Gender Injustice and the need for equal treatment: A study
with Special Reference to property rights of Catholic women of Kottayam
District in Kerala and Kannyakumari district in Tamilnadu”. A modest attempt is
made to analyze critically the following issues in protecting the rights of women in
general and property in particular.
162
163
1.
What are the legislations that confer property rights to Christian
women?
2.
Are they getting a share of ancestral property as per the provisions of
the Statute?
3.
Whether these rights are accessible to Christian women equally on par
with men?
4.
Are they denied these rights through the instrument of testament,
release deed or family settlement of properties?
Enns Carolyn, Feminist Theories and Feminist Psychotherapies,35( New York, Haworth Press
1997)
The Hindu, Sunday, April, 2011, The International Labour Organisation (ILO) has recently come
out with a study on women’s unpaid work titled: ‘Cooking, caring and volunteering; unpaid
work around the world.” In the three emerging economies, India, China and South Africa women
spend more time doing unpaid work than men.
50
5.
What is the approach of the Judiciary towards the Christian women’s
right to property?
VII OBJECTIVES OF THE STUDY
The specific objectives of the study are
1.
To examine the various theoretical aspects of the gender injustice.
2.
To trace out the historical background of the origin of the gender
injustice.
3.
To critically analyse the legislative response with regard to the
property rights
of Christian women and find out the disparity in
other religious laws.
4.
To evaluate the role of judiciary in upholding women’s right to
inheritance.
5.
To study the socio-economic background of Christian women.
6.
To suggest remedial measures.
VIII HYPOTHESES
The following hypotheses are formulated for the purposes of the study.
1.
The Christian Succession law in India being a reproduction of British
culture conferred absolute testamentary capacity to a testator
disinherits women;
2.
The root cause for gender injustice is denial of equal share in the
ancestral property.
3.
Absence of comprehensive legislation conferring equal right to
inheritance to Christian women results in discriminatory practices
against them.
4.
Denial of equal share results in deprival of dignified life in the
matrimonial home.
5.
The traditional acquiescence of the catholic women regarding denial of
equal rights in the family prevents them to claim equal share in their
ancestral property.
6.
The laws and practices need to be reviewed so as to protect the interest
of Christian women.
51
IX METHODOLOGY
The study is mainly doctrinal and partly empirical. The doctrinal study is
based on secondary data gathered from various sources such as books, journals,
magazines, newspapers and Law Reports. For this purpose the researcher visited
several libraries in and out of the State. She also undertook experience survey and
consulted legal academics, luminaries, social activists and Judges for getting valuable
insights and inputs regarding the problem. The researcher has applied analytical and
comparative methods for data analysis.
The primary data were collected from Kottayam district of Kerala and
Kannyakumari district of Tamilnadu using stratified random sampling method. The
total women belonging to Estate owner’s family formed one stratum. Secondly simple
random sampling was taken and the same (1%) was taken from each stratum. These
samples were consolidated into the final sample.
X SCOPE AND LIMITATIONS OF THE STUDY
Since the concept of gender injustice is very wide, the researcher has
confined her study to only the property rights of Catholic women of Kottayam District
and Kannyakumari district of Tamilnadu. The researcher has selected Kannyakumari
District in Tamilnadu because Kannyakumari was part of the erstwhile Travancore
State and they were governed by the Travancore Christian Succession Act, 1916. At
the time of Reorganisation of States in 1949, Kannyakumari became part of the
reconstituted Travancore – Cochin State. Later during the linguistic reorganization of
States Kannyakumari was integrated with Tamilnadu.
The study will be limited to the women belonging to Estate owners’ family
in Kottayam District of Kerala and Kannyakumari District of Tamilnadu. The
52
researcher has collected decided cases regarding property issue from the
Kannyakumari and Madurai Courts and also from the Courts of Pala, Kottayam and
High Court of Kerala.
XI PLAN OF STUDY
The study is divided into seven chapters. The introductory chapter
contains the need for study, review of literature, clear statement of the problem,
objectives of the study, hypotheses, methodology adopted, scope and limitations of
the study and also the theoretical perspectives consisting of definitions, causative
factors and theories of gender justice.
The second chapter is on The status of Christian women in the Christian
personal
law.
It
discusses
origin
of
Christianity
in
Travancore
and
Kannyakumari.The application of Canon law to Christians, the influence of Common
Law and the legislative history of Travancore Christian Succession Laws are also
included in this chapter.
The third chapter is Christian Women Property Rights: Legislative
Response. It examines the legislative response at the international and national level
and Constitutional provisions. The Indian Succession Act,1925, The Travancore
Christian Succession Law 1916, The Administration of Estates Act,1925 U.K, the
Legal Protection of the family in matters of succession in English Law, and the
Inheritance (provision for Family and Dependants) Act 1975 (U.K.) and the like are
discussed and analysed in this chapter.
The fourth chapter discusses Women Property Rights - A Comparative
study of Hindu, Christian and Muslim presents a comparative study of the property
rights of Christian, Hindu and Muslim women in their respective personal laws.
53
The fifth chapter is about Christian Women Property Rights: Judicial
Response. It deals with role of judiciary. Since the reported cases on the property
disputes filed by Christian women are very few, decided cases are collected from the
munsif, sub-courts, and High courts of Kerala and Tamilnadu.
The sixth chapter is on Empirical study relates to property rights of
Catholic women of Kottayam (Kerala) and Kannyakumari District (Tamilnadu).
The primary data collected from the respondents (the catholic women of Kottayam
and Kannyakumari districts) have been analyzed and presented in the form of tables
and diagrams.
The concluding chapter seeks to provide some suggestions. Conclusion is
drawn on the basis of discussion made in the previous chapters and important
suggestions are mooted to address the situation.
54