Gender inequality in India evinces itself in a diversities of ways, but the most prevalent is in the area of legitimate property rights. Numerous laws have been eventuated to abolish women’s economic beliefs and furnished their high status and equality. In addition, the Constitution of India establishes equality, invigorating women’s property rights and ingress to economic resources. Despite all of this, the affairs of women remain consistent due to a lack of education and knowledge, and non-compliance with the rights of women’s law. Due to family norms, societal humiliation, and related prospects, even women themselves are not so much interested in executing their rights. The empowerment of Indian Women by Dr. Babasaheb Ambedkar invariably convinced movements headed by women.
He persisted that every married woman must participate in her husband’s activities as a friend. But she ought to show the audacity to contradict the life of slaves. She should hold on to the rules of equality. If every woman sticks to it, she will acquire genuine respect and recognition. He said, “We shall have good days ahead and our progression will be greatly hastened if male learning is persuaded side by side with female learning ”. He initiated a strong gesture against the Hindu social order and introduced a journal Mook Nayak in 1920 and Bahiskrit Bharat in 1927. He laid due emphasis on gender equality and the demand for education. In January 1928, a women’s organization was established in Bombay with Ramabai, Ambedkar’s wife (president). The emboldened Dr. Ambedkar empowered women to express themselves, it was glimpsed when Radhabai Vadale addressed a press conference in 1931.
MARRIAGE AND DIVORCE LAW
According to Vedas, a Hindu marriage is an imperishable alliance till eternity. It is known as a fusion of “flesh with flesh, skin with skin and bones with bones, the husband and wife grace as if they were a single person. The Hindu Marriage Act, of 1955 has eliminated these imbalances to a large stretch. It has created monogamy the principle for both men and women. A woman can break down her marriage and easily enter into another marriage as per to law. The Hindu Marriage Act, of 1955 has specified the causes for divorce. The Hindu Marriage Act, 1955 Section 5 lays down the circumstances for marriage. It opines that both parties to the marriage should have the position to obtain consent to the marriage.
The Hindu marriage is a sacrament; sacred and eternal. It is perpetual and pursues life cause she can’t have a second husband even after his demise. Husband and wife become individual as she cannot have any originality of her own. But the husband could set his foot into the sacramental crimp of marriage many numbers of times because polygamy was not banned under Hindu law before the enforcement of the Hindu Marriage Act, 1955. However, the views regarding the nature of Hindu marriage are evolving.
LAW OF ADOPTION
The law of adoption in the ancient Hindu tradition is different from one creed to another. The Hindu Adoption and Maintenance Act, of 1956 established uniformity in the principle of adoption among Hindus. A Hindu woman was empowered to adopt a child only under exquisite circumstances under the Shastric Hindu Law. The women’s rights to adopt a child were restricted. Through the Hindu Adoption and Maintenance Act, 1956 the authorization of a woman to adopt a child is granted, but bigotry against women continues. A married man can adopt but a married woman can’t during the maintenance of the marriage under the Hindu Adoption and Maintenance Act, 1956. Now, this inequality has been removed by the Personal Laws Amendment Act, 2010.
To eliminate all these conflicts and to secure women as equal to men, the then government sanctioned the Hindu Succession Act in 1956. The Act passed in 1956 was the fundamental law to provide an absolute and uniform structure of inheritance for Hindus and to label gender inequalities in the patch of inheritance. Therefore, it was a procedure of codification as well as an amendment at the same time. The Hindu Succession Act was the initial act of property privileges and rights among Hindus after independence. The Hindu Succession Act, 1956 was sanctioned to codify creeds statute relating to deliberate succession among Hindus.
This appeals to both Mitakshara and Dayabhaga creeds. Preserving the Mitakshara inheritance without women being involved in it indicated that women could not bequest ancestral property rights as men do. If a joint family diverged, each male beneficiary takes his share, and the women acquire nothing. The Hindu Succession (Amendment) Act, 2005, enveloped inequalities on different appearances: parental dwelling house; agricultural land; Mitakshara joint family property; and certain widows. From history to the present, there is an extreme change in the lifestyle of women, now women with their domiciliary work also play a part in the earning of their family and the economy of the nation. She absences nowhere at the back of the man. Women must never be contemplated the delicate part of society as their household tasks are more difficult than the office work of the man.
WHY DO RULES FOR WOMEN’S SUCCESSION NEED TO CHANGE?
The law approves heirs of the father or husband to inherit properties of women who die unheard, but properties of men who die unheard don’t delegate to a woman’s heirs. A three-judge Supreme Court bench headed by Justice DY Chandrachud is trialing a petition testing the provisos of the Hindu Succession Act, 1956, specifically sections 15 and 16 relating to female succession. The appeal challenges the constitutionality of the provisos for being “overly discriminatory and infringing the procedure of the Constitution”. Although the lawsuit was filed four years ago in 2018, an amendment bill recommending changes retrieving the same had been already found in Parliament in 2015, but there was no conversation on it, leading to the sequential lapse of the bill.
The Hindu Succession Act gives the principles for the property succession of a Hindu woman who dies unheard. It comes up with a hierarchy heeding to which the property is to delegate.
1. Prakash v. Phulvati1 – In this case, a two-judge bench headed by Justice A. K. Goel held that the interests of the 2005 amendment could be permitted only to living daughters of living inheritors as of September 9, 2005 (The date when the amendment came into power). The Apex Court had held that Section 6 was prospective in nature and would apply only if the coparcener and daughter were both alive as on 9 September 2005.
2. Danamma v. Amar2 – In this case, the honorable Supreme Court of India stated that if the father is a coparcener who demised before 9 September 2005 and a prior suit has been unsettled for partition by a male coparcener, then the female coparceners are sanctioned to a share. The court remarked that the provisions of section 6 (Amendment Act) are functioning in a retrospective manner and they transform absolute rights upon the daughter to be inheritor since birth. This judgment was in contrast to the judgment given in the Phulavati case.
3. Vineeta Sharma v Rakesh Sharma3, the court held that a daughter coheir would have equal coparcenary rights in Hindu undivided family properties or equal privileges to the family property by birth regardless of whether the father coparcener demised before or after 9 September 2005 (The day Parliament acknowledged this right by amending the Hindu Succession Act of 1956). The Supreme Court of India held that Section 6 shall be seen retroactively. Describing the theory of retroactive application of the amendment act, 2005, the court held that the said Act permits women to have the benefits of succession based on their birth.
However, despite all the rebellious conditions of the Hindu Succession Act of 1956, Hindu women in the Indian community pursue to be underprivileged property rights in general. It was only a slice of legislation. Even though the Act established insurgent changes, it has been predominantly ignored by family members in fact since the conditions are incompatible with habitual Hindu social essence. There because of a limpid contrast between the law as it is and the law as it is bid. It is frequently tarnished by incidences of unabashed prejudice. All of these are laudable measures in theory, but the challenge leans not in acknowledging women’s property rights but in implementing them.
1 (2016) 2 SCC 36.
2 (2018) 3 SCC 343.
3 (2020) 9 SCC 1.
The article is written by Ashmita Dhumas, who has completed her BA LLB from Agra College and is doing a diploma in Corporate Law from Enhelion.