>
Many legal reforms have taken place because independence in India, including on equal share of daughters to property. Yet equal status remains illusive .Establishment of laws and bringing practices in conformity thereto is necessarily a long drawn out method. The government, the legislature, the judiciary, the media and civil society has to perform their roles, every in their own areas of competence and in a concerted manner for the method to be speedy and successful.
To quote Justice Sujata V. Manohar of Supreme Court of India
"...It is not hassle-free to eradicate deep seated cultural values or to alter traditions that perpetuate discrimination. It is fashionable to denigrate the role of law reform in bringing about social change. Certainly law, by itself, might not be sufficient. Law is only an instrument. It ought to be effectively utilised. And this helpful use depends as significantly on a supportive judiciary as on the social will to change. An active social reform movement, if accompanied by legal reform, appropriately enforced, can transform society."
Historical perspective
An helpful social reform movement does will need the support of law and a sympathetic judiciary to attain its objectives. Girls empowerment, equal rights to both males and women, equal share of property, etc., are some of the problems which we talk about everyday, in life, newspaper and on television. But the reality which bites is that these issues are nonetheless "unresolved". Not a great deal has truly been completed to generate equality in between the male and female gender. The male nonetheless dominates society.
If it is a matter of property, then legally male dominate the society. There are various laws that say that there ought to be no discrimination among the sexes, but in reality none are efficient sufficient to really bring about a revolution a alter in society.
According to the Indian Succession Act, 1925, everybody is entitled to equal inheritance, except Hindus, Sikhs, Jains, Buddhists and Muslims. Under this act, the daughter of a individual dying intestate would be entitled only to one-fourth of the son's share, or Rs. five,000/- (Sthree Dhan), whichever is lesser. The Travancore High Court, on the other hand, held that the Indian Succession Act would have no application to the Christian ladies of the Travancore State in view of the Travancore Christian Succession Act, 1916. Under the State Act, the daughter of a individual dying intestate would be entitled only to one-fourth of the son's share or Rs. 5,000/- (Sthree Dhana) whichever is lesser. The application of the State Act was challenged in the Supreme Court in the famous Mary Roy's Case (Mary Roy Vs. State of Kerala, AIR 1986 SC 1011 1986(two) SCC 209). The Court ruled that the Cochin and Travancore Christian Succession Acts had ceased to be operative on the Reorganization of States and that automatically produced the Indian Succession Act applicable to all Kerala Christians bestowing on them equal inheritance rights.
The Hindu Enactment Act, 1956, established that females have equal inheritance rights, as males and it abolished life estate of female heirs. However, this law could not do the needful as there was another law, the Mitakshara coparcenaries (Hindu Law) that overruled the previous law.
According to Mitakshara coparcenaries, in a joint family, a daughter gets a much smaller share of property compared to the son. While the father's property is shared equally in between brother and sister the brother, in addition, is entitled to a share in the coparcenaries from which the sister is excluded .For example, if the household owns a dwelling house, then the daughter's ideal is confined only to the proper of residence and not possession or ownership.
Recommendations of Women Committees/Commissions on Status of Girls in India
In 1975 a committee on the status of women was constituted by the Government of India, to evaluate the present legal provisions in regards to ladies , so that that a women is not left completely destitute.
Some important recommendations which had been produced by this committee had been that legislative measures really should be taken to bring Christian women of Kerala under the Indian Succession Act. The Indian Succession Act should certainly be extended to Goa and Pondicherry respectively to undo the relegation of widows to fourth position in matters of succession and to undo the inferior position to which Christian females are relegated by not being regarded as as full owners of property. In regards to succession to property among Hindus, the correct by birth should certainly be abolished and the Mitakshara co-parcenary should be converted into Dayabhaga (the retention of Mitakshara co-parcenary perpetuates inequality between sons and daughters as only males can be co-parceners, and inheritance is only through the male line). The exception provided in Section 4 (2) of the Hindu Succession Act relating to devolution of tenancies should certainly be abolished (this provision, as it stands now excludes devolution of tenancy rights under diverse State Laws from the scope of the Act).
The discrimination between married and unmarried daughters relating to proper of inheritance of dwelling houses caused under Section 23 of the Hindu Succession Act need to be removed.
The proper of testation ought to be limited under the Hindu Succession Act, such that female heirs are not deprived of their inheritance rights. There is want for legislation in Muslim Law to give equal share of property to the widow and daughter along with sons as completed in Turkey.
In Matrimonial property, legal recognition will need to be given to the economic value of the contribution produced by the wife through household function for purposes of determining ownership of matrimonial property, rather of continuing the archaic test of actual financial contribution On divorce or separation, the wife should really be entitled to at least one-third of the assets acquired at the time of and in the course of the marriage.
The National Commission for Girls had also recommended particular amendments in laws related to girls and property. Under Indian Succession Act, 1925 it suggested that Sections 15 and 16 of the Act, really should be amended, removing mandatory linkage of wife's domicile with that of the husband. Further, it suggested that appointment of testamentary guardian might possibly be the right of both the parents acting concurrently. Widows ought to be granted letter of administration to deal with the Estate of the deceased husband unless excluded by the Court for sufficient factors (Section 219 (a)).and application created by the widow to be disposed of inside a year (Section 218 (2).In Hindu Succession Act, 1956 It suggested that equal distribution ought to be made of not only separate or self acquired properties of the diseased male, but also of undivided interests in co-parcenary property. Daughter of a co-parcener in a Hindu joint household governed by Mitakshara Law to be co-parcener by birth in her own perfect in the exact same manner as her son she really should have correct of claim by survivorship and to have similar liabilities and disabilities as a son further co-parcenary property to be divided and allotted in equal share.
The suitable of any heir to claim partition of a dwelling house to arise only soon after settlement of widowed mother's rights is disposed with in case the deceased male is intestate.
A remarkable dent in this circumstance was created by the Hindu Succession [Andhra Pradesh] Amendment Act, 1985, which initiated a remarkable development. This law stated that, in any circumstances, the rights of the daughter are equal to that of the son. This new law found the Mitakshara system in violation of the fundamental correct of equality bestowed upon girls in Indian Constitution. Following Andhra Pradesh, the States of Tamil Nadu, Maharashtra and Kerala subsequently also amended their laws by such as women as members of the coparcenaries.
The Rajya Sabha on August 16, 2005, passed the Hindu Succession (Amendment) Bill, 2004, (Hindu Succession (Amendment) Act, 2005,) which is now a law, giving daughters and sons equal rights to property. According to this law, any woman, irrespective of the marital status, has full proper to inherit ancestral property just like a son of the loved ones. This law has entirely abolished the Hindu Succession Act 1956 by giving equal rights to daughters in the 'Hindu Mitakshara Coparcenary property', as sons have. If nonetheless, any of the parents have built some property and have created a will of their own, this law would be ineffective.
Myth
Earlier, the law use to put the male heirs on a higher footing by offering that they shall inherit an additional independent share in co-parcenary property over and above what they inherit equally with female heirs the really idea of co-parcenary was that of "an exclusive male membership club" .Now this concept has` been abolished . But surprisingly, even currently, even immediately after the new law, co-parcenary remains a primary entitlement of males no doubt law supplies for equal division of share in between all heirs, male and female on the death of a male co-parcener, but in practice the scene is completely different .Legally, Intestate self acquired property devolves equally among male and female heirs but , even toady female heirs are asked to relinquish their share by generating relinquishment deeds on their signature and are typically submitted in courts. If the intestate property consists of a dwelling house, the female heirs have no suitable to partition until the male heirs select to divide their respective shares. If a Hindu female dies intestate, her property devolves initial to husband's heirs, then to husband's father's heirs and lastly only to mother's heirs thus the intestate Hindu female property is kept inside the husband's lien.
Conclusion
To essentially achieve equal inheritance for all, the laws have been amended. In regard to succession to property among Hindus, the proper by birth has been abolished and the Mitakshara School co-parcenary of Hindu Law has been converted into Dayabhaga School that indicates equal distribution of not only separate or self acquired properties of the diseased male, but also of undivided interests in coparcenary property. Daughter of a coparcener in a Hindu joint family governed by Mitakshara Law now is coparcener by birth in her own suitable in the very same manner as a son she has ideal of claim by survivorship and has identical liabilities and disabilities as a son now co-parcenary property to be divided and allotted in equal share. The theoretical reforms so far have not been adequate to give all Indian females a correct to property on the similar footing and terms as males. It varies with region and religion. Even where law has given a suitable, conventions and practices do not recognize them. Females themselves relinquish their rights. Females, as daughters, wives, daughters-in-law, mothers or sisters tend to shed out and sometimes suffer deprivation. This further gets accentuated when they lose the security of the family members, as single women, divorced/separated or widowed. Social awareness of the rights under law, attitudes to adhere to it and a mindset to alter law and practice to assure social justice is consequently urgent.
Hence a social reform movement is needed for such awareness and alter of mindset. Since 'marriage' is the most regular institution of initiating a household and preserving it, let registration of marriages be created compulsory It is suggested that to attain far more power for girls we ought to Improve awareness of laws via education institutions, general awareness and legal awareness programmes sensitize Judiciary, administrators and legislators about implementation of laws in letter and spirit think about long pending recommendations for amendments of legal provisions on inheritance and strengthen the administrative machinery for the purpose.
Tidak ada komentar:
Posting Komentar