History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v7.c96.s2.35
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v7.c96.s2.35
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v7.c96.s2.35.1
One of the outstanding characteristics of Hindu society for several millennia has been the joint family system of the Mitākṣarā type which prevails in the whole of India (except in Bengal which is under the Dāyabhāga system). Its peculiarity is that all male members in the family form a coparcenary, that if any male of the family dies his interest devolves by survivorship on the remaining male members including his own male issue, if any, that females have no rights in the family property except marriage expenses and maintenance and no member of the joint family could transfer any part of the family property by will (not even the father) or by sale or mortgage except for certain recognised family necessities This joint family system and the caste system were the bulwarks that kept together Hindu Society for centuries, inspite of foreign invasions and misrule. The Hindu Succession Act (30 of 1956) makes two sweeping changes in the Mitākṣarā joint family system. The explanation to Section 30 of the Act provides that any male Hindu may dispose of by will his interest in the coparcenary property. This is one drastic change. A similar drastic change was made by section 6, its proviso and explanation read together. Briefly it comes to this.
v7.c96.s2.35.2
If a Hindu coparcener of the Mitākṣarā system dies after the Succession Act comes into force, leaving him surviving no son, but a daughter or the daughter of a predeceased son or the son of a predeceased daughter or daughter of a predeceased daughter, his interest in the coparcenary property will not pass by survivorship to the other surviving male members of the coparcenary but to the above mentioned descendants of his and the interest that would pass to these descendants would be the share in the coparcenary property that would have been allotted to him if partition of the coparcenary property had taken place immediately before his death. Before this Act, the daughter or the other heirs mentioned above would have got nothing in the coparcenary property when any male member of the family died sonless. These two changes make of the joint family of the Mitākṣarā type a mere shell. It was suggested when the Bill was before Parliament that Parliament should provide that the joint family system of the Mitākṣarā type has been abrogated and that all members of the joint family after the passing of the Act would be only tenants-in-common. But this was not done. Why the Minister in charge or the members of Parliament felt squeamish about ending the coparcenary system of the Mitākṣarā is not clear to the present author. It looks like straining at a gnat while swallowing a camel.
v7.c96.s2.35.3
These and other changes in the old Hindu Law are possibly motivated by the desire to do justice to the rights of women. But in some cases this is done with a vengeance. For reasons of space only one example of this type is cited. Under Section 8 of the Hindu Succession Act and the Schedule of heirs in class I and class II, if a man dies possessed of property leaving only his mother and father (and no sons or wife or other persons) the mother will take the whole estate of her son absolutely to the entire exclusion of the father, since the mother is placed among heirs of class I., while the father is placed in class II and the rule in Sec 8 (a and b) is that heirs put in class II succeed only if there is no heir in class I. Under Yāj II 135 the order of heirs to a man dying without male issue is first the widow, then daughter, then daughter's son or sons, then parents (*pitarau*, the dual is used). Some commentators held that the mother is to be preferred as heir to the father, others held that the father is to be preferred to the mother, while still others held that both parents should succeed together. In the Council of States (Rājyasabhā) the father was put in class I along with the mother, but in the House of the People the mother was put in class I and the father was put as heir in class II Article 15 of the Constitution prohibits discrimination on the ground of sex, religion, race &c.
v7.c96.s2.35.4
What difference can be made between the mother and the father of a man as heirs except on the ground of sex? Probably, the legislators wanted, in however small a way, to compensate women for past injustices to them The Hindu Law of Succession of 1956 goes even beyond Muslim Law in that it recognizes twelve categories of persons (in class I of Schedule) as entitled to succeed simultaneously and take the property of the deceased. In a few cases it is possible that the heirs of class I taking the estate of a deceased person may be twenty or even more, if the latter leaves five sons and five daughters, besides some children of predeceased sons and daughters There is probably no country in the world where so many persons are entitled to succeed simultaneously to a deceased person's estate. The result would be that there would be great fragmentation of property and constant wrangles and litigation. This amounts to distribution of poverty. Under the Hindu Law before 1956 women as heirs to males took as a general rule a limited estate (i. e. a life estate) For example, if a man died leaving his wife and a brother or a brother's son (but no children) his widow would take a limited estate i. e. on the widow's death, the estate would go to the brother (if alive) or to the latter's sons &c. Now (after 1956) the widow would take an absolute estate and she would be able to dispose of it as she pleased (by sale, gift or will). Vide Section 14 of the Hindu Succession Act of 1956.
v7.c96.s2.35.5
Not only this, that section has retrospectively conferred an absolute estate on the widows who succeeded as limited owners before 1956. Suppose a person died in 1950, leaving a widow and a brother. The widow would take only a limited estate and she could not sell it or will it away, if she died before 1956 the husband's brother would have succeeded to the estate. But suppose she is alive and in possession of her husband's estate when the Act of 1956 was passed. Her estate is at once enlarged. She can donate it to any one or leave it by her will to her own brother and entirely destroy the expectancy of the husband's brother to succeed to her husband's estate. This is equality of women with a vengeance The mass of people know nothing about this at present. But when many cases come before the courts and the common people come to know the present law whereby the expectancies of male members of her husband's family are set at naught by the widow transferring the property to persons that are strangers there is bound to be great trouble.
v7.c96.s2.35.6
Of all the revolutionary changes in India none will have more pervading influence and meaning than the drastic changes in the legal status of women made by the laws affecting Hindus passed from 1954 to 1956, which enforce monogamy, make polygamy punishable, which provide the minimum ages for the marriage of women and men at 15 and 18 respectively, which allow divorce to both sexes on the same basic rules, which confer rights of inheritance and absolute ownership on a daughter and her children, that allow the husband or the widow of a person, if the deceased had not already adopted a son and a daughter before his death, to adopt a son and a daughter.