By Abhishek Jha:
That women still continue to be seen as an economic burden in India is not surprising, since some religious and social norms that continue to oppress them have the sanction of law. This is why despite efforts at empowering women, our campaigns fall short of even empowering them within their families, let alone out in the world.
When a Delhi family went to court to decide who is to be the next Karta (head) of the family, the odds were not in the eldest daughter’s favour because Hindu law does not recognize a daughter as a coparcener or joint heir.
Dependence on men, which has led to centuries of oppression, did not appear to be ‘natural’ here but rather enforced with statute.
Thankfully in this case, things were set to change.
The judgment of the Delhi High Court in the case, which was made public recently, has explained that the right of being a Karta extends to the daughters of the deceased head of a Hindu Undivided Family (HUF). This further clarifies the 2005 amendment to The Hindu Succession Act that made the daughter of a coparcener by birth “a coparcener in her own right in the same manner as the son”.
In India, what constitutes an HUF (loosely understood as a joint family) is governed by Hindu law, with only some riders that have been effected by Acts of parliament.
A Karta in an HUF has the powers of management of the HUF, and represents the family in legal, social, religious matters, etc. The position of the Karta was understood to be occupied by the senior-most coparcener. That the daughter could be a coparcener “in her own right” was explicitly established by the amendment and in subsequent cases but there appeared to be no precedent for the daughter becoming a Karta of the family. This is because a coparcener cannot create a coparcenary (while a Karta can) but only terminate it.
The judgment probably tilted in the favour of the daughter seeking to be the Karta of the family due to what is codified in Section 6(c) of the 2005 amendment. The section effectively states that if Hindu Mitakshara law makes any reference to a coparcener, it would include the “reference to a daughter of a coparcener”, which, traditionally, was a position denied to daughters. Thus the Hindu law’s reference to the senior-most coparcener – the person who is entitled to be the Karta – would also now include the reference to the daughter. The defendants not in agreement, however, were arguing that since the amendment did not specifically talk about the Karta, its meaning had to be understood from Hindu law.
Although we had amended our law, stating that we wanted to end “discrimination on the ground of gender” and end “oppression and negation of her (women’s) fundamental right of equality”, we didn’t know yet whether the actual word of the law could override the prejudices inherent in Hindu law.
It is clear now (after the judgment) that the amendment has created room for the position of the Karta – the head of the family – to be occupied by women. This gives more agency to women in matters of the family than if they had only been seen as inheriting a property. This feminist tone lent to our jurisprudence may help similar cases in the future.
However, the same position is not enjoyed by widows. Since widows cannot be coparceners, they can only inherit the share of their husband (which further gets divided among all the people who can inherit the property) should the coparceners opt for a division of the property. There was another judgment by the Supreme Court earlier in December that had sought to expand the meaning of the law to create a more equal family. The Court had ruled in a case that widows could act as “manager” of the HUF and acquire property on behalf of a sole surviving male coparcener (a would-be Karta) provided he is a minor. Yet, without the right to become a coparcener, the widows are not only barred from ‘creating’ property for the family – except in the rare case that the SC pointed out – they also inherit lesser part of the property.
It is heartening to see that the courts have stepped in when our legislators are not keen on some change. Despite the existence of provisions of equality and non-discrimination in the constitution, holes in existing legislation often come in the way of exercising these rights. If we are to move towards a more just society, the Courts must provide for a freer meaning of these rights. Hopefully, such a tone will also be taken by the Supreme Court in the Sabarimala temple case, where a petition asking for a revocation of the ban in the temple on women who have reached puberty is being heard.