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Project Gender Justice
– Hindu Succession (Amendment) Act 2005 –

Dr Birendra Kaur

Guru Nanak is the sole prophet, who, in his benevolence, conferred equality to woman with man. As such, Sikhs should have been the torchbearers to practically implement this doctrine, and demonstrate to the world the vision and far sight of our Gurus, and their love for humanity. But just as we are unable to rid of the caste hierarchy syndrome, which has led to mushrooming of deras – a looming threat to our very identity/survival, we have also failed to accept our daughters at par with our sons. Highly skewed gender ratio on account of female foeticide and infanticide is the outcome, projecting us as a hypocrite people. It is a quomi shame. Unless we admit it as that, and take drastic steps to correct the wrong by truly following the Sikh tenets, we will never be able to look the Guru in his eyes.

The Government of India, has introduced so many laws to alleviate the dismal status of vulnerable sections of society, such as the aged parents, the women, the children, and so on. For example, the law of Reverse Mortgage allows aged parents to mortgage their house and get monthly payments for a period of up to 15 years, after which they may not receive the payments, but will not be required to pay any rent for living in that house for the rest of their lives. (Whosoever lays claim to that property later would have to pay off the mortgage first.) As such, parents can live a dignified life in their old age without having to be dependent on or at the mercy of their offspring(s). It also caters very meaningfully to parents who have only daughters, in which case, under the present cultural setup, parents are under a complex to go and live with their married daughters.
For the women too, amazingly enough, various laws have been passed from time to time to, literally, save them from the atrocities that start even before their birth. The Acts on prohibition of Sati and Dowry are well known among these. Female foeticide has been made illegal. Then, in a very recent, significant move, the law for Protection of Women from Domestic Violence has come to recognize even verbal and emotional abuse as acts of violence*. Further still, the Hindu Succession Act gave equal rights to ancestral property to the girl child as far back as 1956. Amazing, because these amendments come from a people who belong to a religion where equality for women is unthinkable. They have come so far, and are moving past those aspects of their ideologies that are detrimental to the development of a healthy society. The Hindu Succession Act is indeed a striking departure from the pre-existing ancient Hindu law as codified by Manu.

Laws are a must to bring about a change in the mindset of a society. The exact benefit that an aggrieved can derive from these laws comes to the fore only with passage of time and/or on the decision of the aggrieved to take legal assistance. But in the absence of an appropriate legislation, there is no hope. Whereas the Prohibition of Sati Act considerably brought down the number of sati cases, the Prohibition of Dowry Act could not achieve its aim as anticipated. The girl’s parents even abuse the latter sometimes. (But it is interesting to note that this Act mentions the aggrieved as ‘the party’ and not ‘the bride’, so that the bridegroom too can go to court for similar reasons.)

Similarly, the Hindu Succession Act 1956 was not firm enough to achieve the desired objective of bringing about gender equality, as daughters, under societal complexes/pressures, would, of their own accord, go to court and forfeit their right to ancestral property. (It needs to be noted here that the in-laws also did not pressurize their daughter-in-laws to lay that claim. Probably, they feared a similar claim from their own daughters. Otherwise, their greed is too well known to necessitate its highlighting here.) Also, the parents had the right to will their property in favour of whichever offspring they desired, leading to the possibility of exclusion of daughters from property rights. Therefore, the Act has been amended in 2005. This law now has some additions, some deletions, and some substitutions, and is known as the Hindu Succession (Amendment) Act 2005.

As per the amendments in this Act, in plain language, apart from the fact that daughters have equal rights to ancestral property as sons, as was already the case, now even their offsprings can claim that right, and parents now cannot will their ancestral property to the contrary.**

To quote a sample of variant views on this issue:

– Kirtee Singh feels that the recent legislative proposals amending the Hindu Succession Act are important steps towards gender equality, but the proposed changes are not comprehensive enough and women will still be subjected to unequal property rights. Among others, one point he makes is that she will be subjected to unequal property rights in agricultural land as Section 4(2) of the Hindu Succession Act allows for special State laws to address the issue of “fragmentation of agricultural holdings”, “fixation of ceiling” and ‘devolution of tenancy rights’ in these holdings. Thus, State laws exist in Delhi, U.P, Madhya Pradesh, Punjab & Haryana, which deny women equal rights of succession in tenancy rights.1

– Indira Jaisingh, a senior advocate, Supreme Court of India, feels that the amendments are ill thought out, and will do little for women as a whole. She states the example of the so-called reforms of the 1950s, which introduced the right to divorce without simultaneously giving the divorced wife the right to her share of the joint family property; divorce meant an expulsion from the joint family and the loss of the right to be maintained. Thus, the seemingly progressive right to divorce has turned out to be nothing more than the right to a divorce, on pain of losing the right to the use of joint family property.2

– Dr Sardara Singh feels that this Amendment to grant equal share in ancestral property to daughters would weaken the girl, result in strained relations with her brothers and parents, and that farmers would abort their daughters in order to avoid division of their agricultural land holdings, and its location into different villages, as daughters are normally married into villages other than their own. He sums up that this Amendment would, in fact, lead to her ‘unpowerment’ instead of her empowerment, as is sought by the Amendment. Further that implementation of this Amendment would shatter the economy of the farm sector, and operational efficiency will be lost completely. His suggestion is that she should automatically become as much a partner in the property and wealth of her in-laws, as her husband, and if they ever think of divorce, the bride should have the right to get the property of the in-laws divided and get her share.3

Where There’s a Will, There’s a Way
Proponents of both the views, i.e., in favour of the Amendment and against it, are aplenty. Although laypersons like me, when it comes to understanding the terminologies used in the text of these Acts, are unable to precisely pinpoint the subtle implications, yet we can try to debate the basic issue as to whether the daughter should be made an equal partner in the property of her parents or not. And, if she is made so on paper, can that be practically achieved without creating chaos-like situation on the ground, and without exposing her to new threats.

First of all, how to determine, to the satisfaction of all, as to which family should she enjoy inheritance rights from? As a female is born into one family and married into another, both the possibilities could exist for her to get her share of rights. Out of the two possibilities, the former relationship, i.e., by birth, is determined by the Almighty and is permanent, lifelong, whereas the latter, through marriage, is an arrangement worked out by mortals, which may last or may not last, or may even change. So, it should not be a difficult choice, as we are to comprehend the Hukm of Waheguru as concluding and binding.

The fears regarding the economic and practical fallout of the Amendments for the farming class may be genuine. But an issue of the nature of gender equality, so strongly advocated by our Gurus, whose approach was universal, and concern – the entire mankind, cannot be ignored/moulded/bent to suit a section of the populace. The world comprises not of farmers alone, and those too not from the Punjab only. Moreover, other sections of society may have other difficulties in giving practical shape to giving equal property rights to their daughters in their cultures and professions. Thus, we should look for solutions that would promote the purpose of legislation, and not defeat it.

As for avoiding a chaos-like situation on the ground, we can perhaps learn from the example of Denmark, where, in order to avoid fragmentation of land holdings and sub-division of farms, the government has set up special banks that cater to this issue. The cost of the farm is assessed. Eldest or one of the siblings gets the whole farm, whereas the others get cash compensation for their shares. The bank makes this payment, and the amount is recovered from the farm as a long-term soft loan, in easy instalments.

It would indeed be a good idea, as suggested by Dr Sardara Singh, if she could become an equal partner in her in-law’s property, and claim that share if divorced. The suggestion is laudable, but I am afraid it is not practicable. It would now put the daughter-in-law, instead of the daughter in the previous case, in a very vulnerable position, exposing her to new dangers. She will no longer be viewed as a welcome addition to the family of in-laws; she would rather be disposed of as an unwelcome claimant to their property. For, if biological parents would rather murder their own daughter than give her some property, then how do we expect the in-laws to act otherwise? So, the threat to her life remains, this Amendment or that Amendment.

Thus, while the Law proposes that daughters inherit as much share of the parents’ assets as the sons, it must ensure its smooth implementation in the interest of the woman herself, so that she may not face fresh threats of altogether new dimensions. The example of Denmark cited above, shows the way. The law of Reverse Mortgage is also serving its purpose well for the aged parents. So, it definitely is not an insurmountable task to find ways that would ensure equality as well as safety of the daughter.

Give and Take
The proposal of giving ‘away’ property to daughters need not startle the parents of the girl. For, the assets going out with the daughter will be compensated for by those coming in with the daughter-in-law, courtesy the same Amendment. This will also obviate the need for the despicable practice of dowry, which, as mentioned earlier, could not be eradicated successfully in spite of the specific Act prohibiting it.

Balancing the Act
The amended Act also mentions that the daughter be subject to the same liabilities in respect of the said property as that of a son. The dictionary meaning of ‘liability’ is – legal responsibility, accountability, responsibility, charge. Thus, the law has also given her as much responsibility, accountability as the son in respect of the property. But the liability must also extend to the social sphere, so that she is made as much responsible, accountable towards her parents, as the son. As it is, rights and duties go hand in hand. So, although it is obvious, yet she could be legally made equally responsible as her brother to care for parents in times of need. In the present cultural setup, the parents nurture, educate, give dowry, and send her away as a subservient wife, for whom, looking after her parents is, literally, not an obligation/priority at all. The parents too are given complexes by our society that they are not to consume even a grain from the daughter’s house after her marriage. By legally investing her with liabilities, her in-laws will be better informed about these, and the society will come to accept these values, which are, indeed, for the betterment of one and all. Parents can look forward to a secure future for themselves, no matter they beget a son or a daughter. All their investment in their daughter in terms of time, money, and energy will not have gone in vain, and the better their daughter does in life, the better it will be for them. They would now rather invest in her with enthusiasm, and their efforts will fructify, as, given the opportunities, girls are doing as well as the boys in every field. We need to bring home new values to the son-in-law and his family. So, by investing her with a legal obligation to care for her parents, through this law, she would be better placed to do so in the face of the present cultural setup. This step will hold good for both the ageing parents as well as the daughters.

The seriousness of the Government to ameliorate the situation of women is worth appreciating. But, the government must ensure that the assets received by daughter, in whatever form, must be available to her all her life, even if these are converted from one form to the other. Free legal service should be provided at every switch, or rather it should be made mandatory to take legal help for the purpose, so that she, at no stage, is cheated or robbed of her property.

As Simple as That
Another fallout, though, of this Amendment could be that female foeticide/infanticide may not end, and the desire for sons may grow, as each son would mean more property in the long run. This possibility cannot be overlooked or simply wished away. The behaviour of each community is affected by its circumstances. For example, labourers go in for many children, as more children means more working hands for them; property is not an issue with them, as they hardly have any. Our sight needs to go as far as possible, if genuine gender equality is to be achieved in every way.

Different countries have different legislatures to cater to the realities on their grounds. France, for example, has increased social and women’s services like childcare and parental leave to increase its population. And, China introduced one-child policy, in which having more then one child is made extremely unattractive, to check its over-population. India’s case is complex. In addition to its overpopulation, India has to balance its skewed gender ratio as well. The females are far fewer in numbers as compared to the males, because the daughter and her parents are the traumatised ones in our culture. Government’s serious effots to ameliorate the condition of women are not all fructifying as expected. Getting a tip from China, India could legistate that if a third child is also a third son, the parents may be heavily taxed. This would not only address the tilt in the gender ratio but also the issue of overpopulation.

Actually, any number of amendments may not do full justice to her as long as we do not view the woman as an individual/person. As per the present cultural values, she is someone who belongs neither to parents, nor in-laws. Parents call her praya dhan, and the in-laws think she is on their mercy. Although she is called gharwali following marriage but, in fact, she becomes beghar. The society further puts pressure on her through dialogues like – ab teri arthi uss ghar se uthegi. If we are serious about gender just laws, let us simply replace the words son and daughter with ‘offspring’, husband and wife with ‘spouse’, and father and mother with ‘parent’.

Ignorance is not Bliss
Lastly, one more factor comes to mind when we try to see why sons are preferred to daughters in our society. It is believed that lineage continues through the male child, i.e., ours is a patriarchal society. It must be borne in mind, however, that there are matriarchal societies too. Thus, such beliefs have no ground, and are merely generated by the environment in which one grows. Biologically speaking, apart from the nine months of pregnancy, the contribution of the mother is more even at the time of fertilization, as compared to that of the father. Ignorance has led to many a myth. For example, men in our society go in for a second marriage, if their wife does not give birth to a son, whereas, it has been long confirmed that the sperm, and not the egg, determines the sex of the child.

It is understandable if societies other than the Sikhs find it difficult to give up the lineage syndrome. But when the Sikhs indulge in practices as are based on such myths, it could not be sadder. Whatever happened to the lineage of Guru Gobind Singh? The Guru sacrificed all his four brilliant sons for our sake, literally throwing the belief of lineage to the winds. He rather ordered us to snap all ties with kurimaars. He administered amrit to both men as well as women, in that age and time.

If we adopt the nomenclature*** gifted by the Guru, whereby all males are ‘Singh’ and all females are ‘Kaur’, we will all at once become children of the Guru, and not of different clans. Do we prefer some other lineage to that of the Guru’s?

Let the Sikhs heed the Guru’s command and practically bring the woman, who, the Guru says, gives birth to kings’,**** at par with man. For, do we not want to be able to look the Guru in his eyes?!

~~~

REFERENCES

1 Kirtee Singh, Amendments to the Hindu Succession Act – Are they enough to bring about Gender Equality?, Combat Law, Vol 4, Issue 1, January – January 2005.
2 Indira Jaisingh, Unequal Reform, Combat Communalism, Jan 2004, Year 11, No 104.
3 S Sardara Singh, Implications of Hindu Succession (Amendment) Act, 2005, Abstracts of Sikh Studies, April-June 2007.

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* Verbal and emotional abuse includes insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child.

* A Muslim can will one third of his property, the rest goes to his Quranic heirs.

* To overcome any situation where more than one person may come to have the same name, the initials of both the parents could be used as, say: Jaikar JB Singh and Roop GI Kaur. As it is, clans are so few that duplication of names is of common occurence even while using these.
** Guru Granth Sahib, p 473

 

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