[nukkad] Law and Discrimination against women

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Never be haughty to the humble; never be humble to the haughty. 
-Jefferson Davis, confederate president (1808-1889)
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In an earlier mail, I had expressed doubt that Nukkies may not be interested
in a long- winding legal discussion on women's rights. I had there fore
proposed to send my comments directly to Guptaji bypassing Nukkad. 

Guptaji very kindly left the option to me and provided me with his email id.
But he observed: 
"I strongly believe all should study law because everyone is supposed to
know law and ignorance of law is no excuse". 

Another member send me & Guptaji a direct mail saying that he had been
keenly following the discussion. 

Looks as if my presumption of disinterest on the part of nukkies was at
least partially wrong. So I am reversing my original proposition and sending
my response to nukkad also.

Here is my response to Guptaji's mail. It is only an expression of
disagreement not of disrespect to his views.
=============

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

Ok. I talked about the past because Ravi was asking for traditional laws of
inheritance. But that distinction is no more relevant. Let us stick to law
as it is.
=============
TWO

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.

Venu: Right. Sorry I missed that. I was too focused on Joint family
property. The discussion on Joint family property. There is no difference of
opinion between us regarding individual property.
----------------------
MCG: 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.
 
Venu: Here, you are wrong. You mentioned the following two rights of Son:
The first right you mentioned was to his father's INDIVIDUAL property,
second was to a SHARE IN HIS FATHER's SHARE in joint family property (on his
father's death). What about the son's right to a share in the joint family
property, which he has independent of his father, simply by virtue of taking
birth in the family. By virtue of being a coparcener, he has a right to a
share in the joint family property equal to that of his father, a right
daughters don't have. That is what I mentioned as the third right, though it
is actually the first right (being an unalienable birthright) and the other
two are third and second rights. You omitted the most substantial right of
the son. 

The problem with rights derived through others and right for share in
INDIVIDUAL property is that such rights can be taken away by a Will. Thus
all the four rights of women you mentioned and both rights of Sons you
mentioned can be taken away by a simple Will. But the right of the Son for a
share in the Joint family property cannot be taken away by any one. Thus
even the little rights conferred on daughters can be taken away but the most
important right of a son in JF cannot be taken away. The discrimination is
obvious.
-------------
MCG: 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. 

Venu: Remember, the four rights of women you mentioned? Two  of them were
right to her father's individual and Joint family properties. What devolves
to her is her husband's too in the same way the husband's share becomes his
wife's too (being partners for life). Thus the male has an indirect stake
(through the share of his wife) in the property of his father-in- law, just
the same way the female has an indirect stake (through the share of her
husband) in the property of her father-in-law. Just has the male has no
direct share in his father-in-law's property, the female too does not have a
direct share in the property of her father-in-law. Female derives the right
through her husband and since daughters have right to share in her father's
property, her husband gets it through his wife. Husband-wife relationship
works both ways, even for property transactions. 

Secondly, number of rights have no meaning. What is the impact of the
totality of those rights? The son gets a minimum of 3 times the property the
daughter is entitled to. The sum total of the 4 rights of the daughter is
one-third (or less) of the sum total of the three rights of the son. 
==========================================
THREE
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.

Venu: Guptaji, my memory tells me that you are wrong about the last two
sentences of the above Para. The Girl after getting married does not become
a coparcener in the JHF of her husband. She just becomes the wife of a
coparcener. When her husband dies, she does not get a share of JHF property
but her husband's share is to be distributed among the widow and children,
if he dies intestate. If he had left that property to someone else, his
widow and daughters get nothing! So she is not acquiring any new right in
the other JHF. 

I agree it is a complex situation. That is why Law Commission had undertaken
a thorough study of the subject and recommended the Andhra Model. It did not
recommend Kerala Model though it said that should be the ultimate aim. 

This involves not just legal matters but social engineering too. Denial of
property rights to daughters has much to contribute to the evolution of the
dowry system. You will agree with me that it is a social evil. 

I am just about legally literate and am not much into sociology. To my
little mind, it seems that abolition of HUF will be beneficial to Hindu
society. Let Sons and Daughters have equal right for property. Legal
assurance that the bride is entitled to a share in family property itself
will go a long way in discouraging demands for dowry. For the distrustful
groom, the bride's share can be given immediately in the brides name. That
should take care of the dowry aspect too, without being harsh to either
side. If any family wants to continue joint management of properties, they
can always enter into a partnership agreement under existing laws or
modified if necessary to allow it. I still believe HUF is a male bastion
that deserves to be dismantled for the betterment of a more equitable Hindu
society and that it can be done without doing much violence to the social
set up. 
-------------------------
MCG: 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? 

Venu: It is my turn to be disappointed. In your otherwise well-reasoned
mail, the last sentence of this Para sticks out like a sore thumb. Did I
ever insinuate that other states are backward and retrograde fools for not
having adopted Kerala Model? No where. On the contrary, I had mentioned that
LC had preferred Andhra Model over the Kerala model, for adoption at
National level. 

I have no superiority complex about Kerala. Like any other state, it has its
pluses and minuses. I myself had in a long mail narrated the negative traits
of Keralites, a post which invited the wrath of a new member named
Kochikkaran from Kerala. At the same time I am not apologetic about Kerala's
achievements also. Same goes for my comments about Hinduism / Islam. You
will note that in my earlier reply, I had supported your views regarding
reform in Muslim personal law. I feel substantive reforms are needed in
Hindu Law too. I don't see anything contradictory in this. If you review
what you wrote above, I am sure you will agree with me that those comments
were not called for in the present discussion. 

As for Rohit's data, I have already debunked his theory in another mail. I
wouldn't take your time repeating it. 

As for the injustices you mentioned, I have already attempted to suggest
some solutions to those. But of course, such complex issues can't be solved
on the basis of off-the-cuff suggestions. My intention is only to point out
at the possibilities. 
===========================================
FOUR
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 opposition 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 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. 

Venu: What nags me is this question. If codification of Hindu Laws had so
much opposition from religious groups, would Hindus have supported Uniform
Civil Code which would have to be truly secular with no place for Hindu
traditions in it? A Hindu Code built around Hindu traditions invites so much
protests. Don't you think that UCC, which will have to discard Hindu
traditions, would have met with more vehement protests? 

I had always blamed Nehru for his failure to pass UCC. I thought given the
good will and majority he enjoyed in the fifties, it would have been easy
for him to have the UCC passed and mute the protests. I had theorized that
he had shelved it under pressure from Muslims and it was in my mind as an
example of appeasement policy of Congress. But your statement about the
vehemence of protests against Hindu Code Bill makes me wonder whether Nehru
failed to bring up UCC because he feared protests both from Hindus and
Muslims. 
--------------------------
MCG: 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.


Venu: If Hindus accepted HSA it was for their benefit.  It just proves that
the Hindu society is willing to change. The fact that Muslims are not
willing to change should not deter Hindus from reforming itself further to
remove inequities in its system. Outside a UCC, the two are separate issues.


HUF may have been a unique Hindu system but it has outlived its utility and
is discriminatory towards women. I could even be cause of the lowly status
of widows, may have had a hand in sustaining Sati in olden days and
certainly had been a contributing factor in the evolution of dowry system.
Cohesive family bonds is certainly the great advantage of JHFs but on the
balance, I do not consider JHF as an institution that need to be cherished
at the cost of discriminating against women. 

Moving with the times and changing it is what progressive Hindu society
should do. As you say, Hindu laws may be better compared to Muslim laws. But
why rest on those laurels when  there are still need for further reform?
Why wait for Muslims to reform? I am not defending lack of reform in Muslim
society. All I want is that it should not deter Hindus from building a more
equitable Hindu society. If  traditional institutions are discriminatory,
let us dismantle them. As you said, status of women is important to social
development. Let us carry on the reform regardless of what Muslims do. UCC
is the best solution. Second best is self-reformation by all communities.
Whichever community does that will progress. Others will suffer.    
=============================
MCG: 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. 

Venu: I have explained above why I dared to speculate about Hindu reaction
to UCC. I wondered that if a Hindu code bill built on the core of Hindu
traditions invites so much protests, what would have been the reaction to a
bill that totally abolished Hindu traditions. It is logical to presume that
the protest would have been more vehement, if anything.
=====================
FIVE
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!

Venu: I once again apologize for the wrong turn of phrase. 

That HSA is discriminatory is not just my opinion - Law commission
comprising of retired supreme court judges had pointed out several
discriminatory aspects of HSA. What pained me was that parliament passed a
law patently discriminatory to women.  That is something Parliament (with
all its constituents, procedures) had DONE. An 'act of commission' is
something you do willfully. And Parliament did pass that law. That is what
disturbs me. 

V.K.Venugopal


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