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Subhadra Chaturvedi - Whether Inheritance to Women is a Viable Solution of Dowry Problem in India?


The gravest form of the problem is dowry death, the enormity whereof can be visualized by the fact that according to the National Crime Records Bureau of India, in 1994, there occurred a dowry death in India every 102 minutes. According to a statement made by the State Minister for Home Affairs in the Parliament of India, the number of dowry death in 1993 is 5,817.

It must be noted that this data is based on reported cases only. In reality, about 40% cases are not reported. "The Hindustan Times", a newspaper in New Delhi with nationwide circulation, published a report on August 9, 1995 that the number of dowry deaths in India in 1994 was 8,500. In other words, in reality, every 40 minutes a bride is killed for dowry in India.

The average record of the last decade is also very disturbing. Every 6 minutes, a crime was committed against women. Every 7 minutes a woman was raped, every 45 minutes a woman is kidnapped or abducted. 335 of women were subjected to cruelty. 17 dowry deaths were reported every day. The total number of reported crimes against women was 82,818. Indubitably, this represent only 30% of actual number of cases.

II

The evil of dowry implies the demand made by the bridegroom's family on the brides family in an arranged marriage. The bride's family, under social pressure, and having regard to the welfare and safety of the bride, has no option other than capitulate to the demand of the groom's family.

The evil of dowry is prevalent in almost all castes and creeds of the Indian Society, particularly in the middle class. The poorer section, in order to upgrade their status, emulate the higher ups and suffer the disastrous effects. The irony is that people who are considered backward in education, social status or economic affluence, do not practice dowry. On the other hand, the evil of dowry is increasing at an alarming rate in those classes of the people who are considered educationally, socially and economically advanced. The practice of dowry has grown so perverted that birth of a daughter is despised as a curse to the family. The dowry has become more distressing and disastrous than the evil of Sati during earlier periods.

Dowry has become an all India phenomenon and is increasing at a very alarming rate. It is rampant in Uttar Pradesh, followed by Maharashtra, West Bengal, Madhya Pradesh, Andhra Pradesh, Bihar, Karnataka, Rajasthan, Haryana, and the tiny Union Territory of Delhi. The Hindu society of India is divided into many castes, e.g., Brahmin, Vaishya, Kayastha, Rajput, Reddy, Kamna, Velu, Mudaliyar, Chettier, to name only a few. It is observed that dowry is practiced by almost all the castes of Hindu Society. The evil is most widespread in the Hindu society, but it has permeated into the Muslim, Christian and other societies. Black money is playing a great role in encouraging this evil practice. Dowry payments and/or receipts are taken as symbols of high social rank of the families and are not deemed as illegal or unethical though prohibited by law. Even the people who have experienced the pinch of the evil system personally remain keen to get dowry. This is the most pernicious and tragic part of the dowry system. Even the passage of time and spread of education the cancer of dowry, instead of abating, is ever on phenomenal increase. It goes against the goal of a socialistic pattern inasmuch as even the people, who can ill-afford the dowry have to spend beyond their means and thus become poorer instead of going up and the gap between the poor and the rich is further widened. The evil is creating a fear psychosis in India like the mafia in European countries. It has to be attacked from all sides -- socially, economically and legally and urgent appropriate measures need to be taken. Only right to inheritance to daughters or brides has not, and shall not, even in widened, cut much ground rather it may prove counter-productive for, inter alia, the following:

  1. 90% of the affected families have not much to be inherited;
  2. there is most negligible social climate in favor of such laws, with the result that they only embellish the statute book;
  3. no amount of legislation can take the place of a frontal attack on a traditionally imprisoned mind which will not take ostrich head out of the sand.

III

The importance of law, however, cannot be underestimated in shaping the status of women, which is increasingly evident in modern democratic societies governed by Rule of Law. It is indubitable that despite eulogy references in scriptures and rhetoric of the leaders of the societies, the religious customs and age-old prejudices have put women as a class to a sub- servient and exploitable position in most domains of life. The Indian legal system, by and large, is no exception. So far as the property rights of women are concerned, they are governed by the personal laws of the women concerned, in accordance with the religious or the tribal community they belong to. Here, a brief resume of the property rights of Hindu women, the overwhelmingly majority community, is attempted.

Needless to go into the history of the property rights of women. The present position is that 99% property is held by men. Inheritance is governed by Hindu Succession Act, 1956 and in respect of agricultural lands, which constitute 90% of the total property in India, by respective land laws of the States concerned. Sub-section (2) of Sec. 4 of the Act, specifically excludes the application of the Act in respect of agricultural holdings and almost all the land laws have given preference to the male inheritance, e.g. U.P. Zamindari Abolition and Land Reforms Act. Even under the Hindu Succession Act, despite the loudest proclamation of gender equality under our Constitution, a female heir is practically entitled to only a negligible fragment of property inasmuch as in India the 90% of the property is ancestral property and the majority is governed by Mitakshara copercernory law and according to Section 6 of the Act (applicable in case of intestate succession) read with the Schedule of the Act, a female heir would inherit only a little unless she is the only heir out of the 12 categories specified in class I of the Schedule, e.g., if a father dies intestate leaving a widow, 4 sons and 5 daughters and an ancestral house worth Rupees 500,000, a daughter would get only Rupees 10,000 and that too at the cost of severing all relationship with the brothers in addition to generation of life long cut throat enmity and that too after prolonged and very expensive litigation which would involve at least Rupees twenty thousand in most of the cases. That is why no female heir tries to even claim, much less enforce, her right of inheritance against her male relatives.

There is a blatant discrimination inasmuch as under the Hindu Law the sons, grandsons and great grandsons have right by birth in the joint family property but daughters, grand daughters and great grand-daughters have no such right. Likewise, sons alone have a right of partition of dwelling house and till then the daughters have no such right and a daughter shall be entitled to a right residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.[1] Life interest of a woman has, of course, become absolute.[2] But the most damaging provision is Sec. 30 which gives to the male right to will away his entire property. In this respect, Muslim Law is more just. There in the right to will or gift is restricted to one third of his property and that too, if to as heir, is subjected to the consent of all other heirs.[3] A Parsee woman has also been recently put in a position, better than a Hindu woman in as much Sec. 51 (1)(a)[4] of Indian Succession Act provides that the property of an intestate Parsee shall be divided equally between each child and widow or widower.

It is unfortunate that a catena of provision of personal laws (which are clearly discriminatory to women and are clearly in violation of the Constitutional guarantee of equality) are ruling the roost for about five decades even after the independence of India. A few examples of such laws are the principles regarding inheritance of Mitakshara Coparcenary of the Hindu Law, the principle of Muslim Law which confers a double share to a male heir as against a female heir of the same degree or Section 9 of the Indian Divorce Act, 1869. Although, the Hon'ble Supreme Court of India ruled that 'Law in force' within the meaning of Article 13(1) do not include 'personal laws' and, therefore, are not hit on the ground of being contrary to the fundamental rights,[5] it is submitted that this view is not sound and needs reconsideration. Shri H. M. Seervai, indubitably a very high authority on the Constitutional Law of India, is of opinion that the personal law of a community is 'law in force' within the meaning of the Constitution and a catena of judicial decisions support this view.[6]

Although gender equality and gender justice was an important item on the agenda of social transformation envisaged by the Constitution makers but due to negligible representation of women (14 out of 299) in the Constituent Assembly, adequate justice could not be done to the women's issues. Neither the original Constitution nor the subsequent amendments appear to be informed by the concept of gender justice except a few provisions.[7]

Subordination of women is the outcome of the patriarchal society of India, which is the basis of all Indian laws. To promote gender equality, it will be necessary to amend the relevant laws based on their judicial interpretation from a feminist standpoint. May I propose that our Society form a subcommittee to examine the interpretation and amendment of the relevant laws exigent to establish female inheritance which will give the financial security to women and which will eliminate the rationalization of money transfer before and/or after wedding in the form of dowry and/or "stridhan". I also propose that the Society adopt a resolution to ask the Government of India and all State Governments to enact laws to guarantee equal inheritance for females as provided under the Constitution of India.

Our egalitarian land ceiling laws are not so egalitarian so far women are concerned. I almost all states, the ceiling of a tenure holder would go up if he had adult sons but it would not go up if he had adult married daughter. There is no consideration for married daughters. Thus, a son is an asset and a daughter, a liability. Such provisions ultimately reduce her inheritance as well. Amendments may be suggested to remedy this situation also. Although the Supreme Court conceded that "adult damsels should not be left in distress by progressive legislation geared to land reforms and Article 14 and 15 and the human spirit of the Preamble rebel against the de facto denial of proprietary personhood of womanhood" but validated the discriminatory provisions on the ground of legislative pragmatism based on life's realism.[8] It is, however, heartening that in Madhu Kishwar vs. State of Bihar,[9] the Supreme Court held the exclusion of females from inheritance in Sections 7 and 8 of Chota Nagpur Tenancy Act, 1908 inappropriate and directed the State to re-examine the feasibility of permitting inheritance to women.

It is further heartening to note that the National Perspective Plan for women 1988-2000 A.D. has recommended the following measures which we may incorporate in our resolutions with a view to conferring additional proprietary rights on women:

  1. all matrimonial property should be registered in the joint names of the husband and wife, where it is not in the joint name, the wife should have right to injunction till the matter is settled;
  2. the parents should be prevented from denying daughters their rightful share of property by making wills disinheriting them;
  3. the right of the wife to the matrimonial home must be guaranteed.

Frequent and serious resort to the devise of Public Interest Litigation may indubitably play a significant role in this behalf.

IV

To sum up, there are no short-cut and flashy solutions for the deep-seated social malaise of dowry and bride-burning in India. The main need of the hour is the awareness of all dimensions of the problem. Education and training programs must be oriented to address the problem, but the success will depend upon the support of liberal persons and institutions run by the government and private agencies. Mere legislation will not do.

Women of the world have, for centuries, silently swallowed curbs on the realization of their own worth and capabilities. Now, with the general awareness world over, the floodgates have opened. It remains to be seen how soon the fair sex convinces traditionally patriarchal societies that they too are worth their salt, just as much as the other half of the population. Now we have to show the domineering and self aggrandizing men that we are not mere playthings for men. We are their strength and without us they are lifeless as has been called in Indian scriptures that Shiva (the Lord of Lords) is shava (corpse) without Shakti (the wife).....humanity to restore the women to her original glory and sublimity which inspired our sages to proclaim:

yatra naryastu pUjyante ramante tatra devatAh where women are worshipped live gods there

But such changes cannot come merely through legal prescriptions. Law can, of course, protect those who crusade for such change and prevent those who try to subvert it. Let us resolve to crusade for such change untiringly and with all strength of body, wealth and soul, undeterred by the hardships in the long journey. God may help us.


Footnotes

[1] Sec.23, Hindu Succession Act, 1956.
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[2] Sec.14(1)
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[3] Fyzee, Outline of Muhammedan Law, P.360
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[4] As amended by Amending Act of 1991.
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[5] Sant Ram vs. Labh Singh - AIR 1965 SC 314.
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[6]Constitutional Law of India, 3rd Ed., Vol.I, pp. 675-677.
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[7] See Lotika Sarkar "Nehru and Gender Justice" (ILI 1992).
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[8] AIR 1980 SC 1762, 1769 - Ambika Prasad vs. State of U.P. AIR 1983 SC 1073 and (1988) 2 SCC 532.
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[9] (1992) 1 SCC 102.
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Revised February 20, 1996