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

["Mahesh chandra gupta" <>]

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Compassion is the basis of morality. -Arthur Schopenhauer,
philosopher (1788-1860)
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 [nukkad] Lamenting the state of women and the men ....

Venugopal has replied to certain points made by me. I have the following clarifications [Made along with the statements]:

ONE

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.

MCG--- Let us talk about law as it exists. No point in talking about law as it was 50 years ago.

TWO


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? 

MCG:

A. Your statement that “Please note that all four rights of women you mentioned are derived through male members of the joint family” is wrong. The first right mentioned by me is a direct right.
B.Your statement that “The son has a third right you forgot to mention  - a share
in the Joint family property equal to his father's share” is wrong. Please reflect upon what you have written. There is no third right. It is just the second right mentioned by me.
 

C.Please note that while the female can claim share in husband’s father’s property, the male cannot claim share in wife’s father’s property. This is the additional right a female has. She can legally claim this right even though the husband might have died. 


THREE


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. 

MCG

Let me explain what I meant by ‘dealing a blow to Hindu personal law’. Joint hindu family is a system unparalleled in the world, not found in any other society. [This is cold statement of legal fact, so none has to jump that I am praising Hindu society]. Breaking this system is breaking the uniqueness of hindu society. [And we are always bothered about preserving that elusive entity called kashmiriat, because that pertains largely to a kashmir,  perceived as/reduced to muslim majority area!]. Still, Hindus tolerated this, not because they want to be broken, but because they usually try to abide by law, even unfair law, at least partly because of a conviction that come what may, nobody can wipe real hindu spirit from their hearts. Now, let me illustrate by example what Venugopal wants and why I call it illogical. Suppose there is a sister and two brothers and parents in a family. The sister is married off at age 18  by the parents and the brothers, pooling resources for her marriage. Thereafter, the father and brothers work hard for 40 years, first to pay off the debt incurred for her marriage, later to build up family status and fortunes. They do so all by themselves, through hard work, without any contribution from the daughter, rather making gifts etc to her from time to time as the occasion demands. All the assets built up by them belong to a corporate entity recognized by law as Joint Hindu Family comprising of the father, sons, and their wives.The girl is now 58 years old. Suppose  the father and sons decide to disband the JHF. Now, the law as it stands states that each of the three males would get a third share. [When father dies, without leaving a will, the daughter would be entitled to geta part  out of father’s individual share equal to what the brothers would get.]. What Venugopal wants is that if the father and sons want to dissolve the JHF, they should divide it into 4 parts, one part going to the daughter. Now, let us think over the illegality of it. One, all these 40 years, the daughter has done nothing to enhance the assets of the family. The assets have been built up by the efforts, work and sacrifices of the father and brothers. There is no fair reason why the daughter should get a share in something which does not belong to her/has not been earned by her. Two, the girl, after getting married, becomes a coparcener in the JHF of her husband. She is entitled to share in the new HUF even though her husband may die. She just cannot be a member of two JHFs at the same time and reap double benefits.

It is noteworthy that this amendment, almost abolishing JHF, came about only in Kerala, where Hindus have been rendered into a minority, as Rohit’s data showed. It was a blow to Hindu society, and the psecs chose to strike ina state where Hindus are in minority. If it is such a great step, firstly, let Venugopal explain the two illegalities I mentioned above. Secondly, let him explain that while Keralites might be great, are Tamils, kannagadas, and hindi belt people all so backward and retrograde fools that they have not followed this great example? 


FOUR


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). 

MCG

I do not know how old Venugopal is. Probably not old enough to have seen the 50’s. Those were the days when there were strong, very strong reservations and oppositon to change and there were every day street processions for or against hindu Code Bill, as the proposed legislation was then called. I was 13 then. The opposition was strong enough to make the parliament pass three separate piecemeal legislations [Hindu Marriage Act, Hindu Succession Act and Hindu Adoption and Maintenance Act]. However, it was the vision and firm conviction and herculean efforts of the progressive leaders of the Hindu society that ultimately resulted in acceptance by Hindus of of the basic changes that were sought to be made through these laws. It is OK for Venugopal to label these almost revolutionary changes as mere tinkering because he has neither witnessed earlier days, nor has he had chance to read Hindu law as part of study of law. In the circumstances, the knowledge and interest of Hindu law that he has shown in his mails, though not exactly correct, is highly commendable. That is so much more refreshing than mere puerile mails in the nature of tidbits. 

Venugopal writes: ‘So you can't claim too much magnanimity in
Hindus accepting it”. Let me make it clear that I have nothing to claim. My aim is to state facts. And, it is a fact that Hindus accepted revolutionary changes in their personal law while muslims refused to, and, continue to refuse to, accept any change in what was revealed to their prophet by god himself 600 years ago. As if, what was written by Hindu law givers 10,000 years ago and followed by Hindus for all these years  was not of equal, if not more sanctity. One may call it magnanimity or wisdom or vision or discretion or maturity or modernity or civilized thinking or just and fair approach or the path of reason or whatever else, that does not matter. But the fact remains that there is a sea of difference between the two approaches and this change is not merely for purpose of theory; it reflects in the status of women, which, in turn, determines the progressiveness of the whole society. Had Hindus been interested in claiming any magnanimity for their actions, they would have done so at various forums. They have accepted these changes not as a show of magnanimity but as a conscious decision, zealously pursued by Hindu leaders, aimed at uplifting their own society. If I work to earn money, I do not claim magnanimity for my actions.   

Venugopal further states: “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)”. I do not know why one is so much exercised about how Hindus would have behaved in a particular situation. The other day, someone asked: how would MCG, Karelia and Rohit respond if BJP had lost in Gujarat. It is remarkable that all 3 had the same answer: that they would all be happy if people of gujarat wanted and voted otherwise. Mind you, we did not enter into a conspiracy to give similar answers. I am sure the same answer would have come from Harshal, Ragini, and most other contributors to the list. See, therein lies the broadness of Hindu mind. We believe in principles. In this instance, the principle involved was free democratic will. If UCC comes into being, Hindus would accept this also. The principle involved here would be abiding by law. BTW, why should Venugopal forget that the demand for UCC is being repeatedly raised by Hindus, not muslims or christians? Dear Venu, the boot is on the other leg.


FIVE

. # 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?

MCG

1. The phraseology used by Venugopal is wrong. Parliaments do not commit acts of commission. Parliaments in democratic systems deliberate on issues and make necessary laws by the required majority as per constitutional provisions. The whole process is carried out in 5 steps at least. One, a house of parliament passes a bill. Two, it is ratified by the other house. Three, the presidents gives assent. Four, the government notifies it. Five, [potentially], it passes the scrutiny of the judiciary. [Laws violative of the constitution can be declared as void by the High Courts and supreme Court.]

2. I note with regret that even Venugopal had to use such cheap phraseology as ‘appeasing MCPs belonging to Hinduism’, without reason or justification. Venugopal ji, I did not expect that from you!

MC Gupta
 



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