[nukkad] Lamenting the state of women and the men ....

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Guptaji wrote: (Digest 656 of 20 Dec. 2002)
1. Reply: There is no absence of law. Rules are clear. The female has share
in father's individual property. There are certain benefits accruing to her
even out of joint family property.

#A In this Para, I was talking about pre-1956 mitakshara. Only male members
were recognized as coparceners. As such females had no share, only
maintenance for life. Succession was on survivorship. So a coparcener who
died before partition had no share to give to his daughters! This was
modified only in 1956 by HSA by the concept of notional partition.

Guptaji on Point 2. Answer: There is no discrimination between genders in
Hindu law as it exists. Rather, there is positive discrimination in favour
of women. A married Hindu woman has the following four rights: firstly,
right in father's individual property; secondly, certain rights in father's
joint family property; thirdly, right, through her husband, in the
father-in-law's individual property; fourthly, right, through her husband,
in the father-in-law's joint property. In contradistinction, a male has only
2 rights: firstly, right in his father's individual property; secondly,
right in his father's joint property.

# Please note that all four rights of women you mentioned are derived
through male members of the joint family and Daughters have no direct right
in the Joint family property and yet you call it positive discrimination in
favour of women! The son has a third right you forgot to mention  - a share
in the Joint family property equal to his father's share  - a right he has,
independent of his father. As law stands today, a male member gets a share
in the joint family property (equal to his father) plus a share in his
father's share of Joint family property. The daughter gets only a share out
of her father's share and no direct allocation of share in Joint family
property. Hence the son gets substantially higher (3 times or more) share
than the daughter. This being so, how can you claim positive discrimination
in favour of women in HSA? 

Guptaji again on Pont 2: As a matter of fact, discrimination lies in the
fact that laws related to property rights of women, which form part of
personal law, were codified by the parliament but made applicable only to
Hindus, while the Muslims were not brought under uniform civil code, as a
policy of appeasement by the Congress government. Had this been done, Shah
bano judgment would not have been necessary. And, shame of shames, the
congress government even annulled that judgment by bringing in an amendment
to constitution! A community where women are suppressed can never rise. The
Muslims want to keep their women suppressed, yet they want to progress. The
two are contradictory.

#I fully agree with you on the views expressed here. I myself had mentioned
failure to enact Uniform Civil Code and reversal of Shah Bano verdict as
examples of Congress succumbing to religious pressure.  First failure of
congress was on Uniform Civil Code.  

Guptaji on Pont 3 : Reply: Refer to above. Agreed, Kerala is a progressive
state. But, having dealt a blow to Hindu personal law, has Kerala struck a
blow for Muslims? Why not? Afraid?

# "Having dealt a blow to Hindu Personal Law" ? The Kerala amendment made
for equal rights for sons and daughters. Why do you consider it as 'blow to
Hindu Personal Law'? The Hindu Personal law has become more equitable and
has no way degenerated on that account. 
As for Muslim personal law, you do have a point. But I am not sure Kerala
could have tinkered with it alone in the absence of a central initiative.
Remember, for HSA also, it was a state amendment to the Central law that did
the trick. Could Kerala have enacted a UCC for itself? If states could do
that, Gujarat (which, unlike Kerala, is unafraid of Muslims according to
Rohit) would have done it!!  
And Kerala is not alone in amending HSA to remove the discrimination against
women. I think Maharashtra and AP too did so, though they did not go to the
extent Kerala did. I think Law Commission in 2000 recommended adoption of
the Andhra Model at National level.

Guptaji on Pont 4: Reply: Refer to above. Hindus were magnanimous in
accepting the Hindu Code Bill even in the fifties, when level of education
was low. Muslims are not willing to accept codification of their personal
law or to accept uniform civil code even in 2002! They even want exemption
from Child Marriage Restraint Act in the name of Islam!

# HSA tinkered with Hindu traditional way of succession only marginally. It
was no revolutionary change. So you can't claim too much magnanimity in
Hindus accepting it. After all the HSA was built on the core of Mitakshara.
Based on the experience of 1956, it is also interesting to speculate how the
Hindu pressure groups would have reacted to a UCC totally abolishing
Mitakshara (UCC will have to do that). 

Again, I concede your point regarding Muslim opposition to UCC and CMRA. 

Failure to enact UCC is an omission, a very serious and vital omission.
Failure to legislate on Muslim personal law for doing away with gender
discrimination is an omission. But by passing HSA, the Parliament willfully
legalized discrimination against women by an act of commission. Why did it
do that if it was not for appeasing MCPs belonging to Hinduism?

The simple point I want to make is that Hindus can't take a holier than thou
attitude in the matter of discrimination against women.

V.K.Venugopal







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