The succession laws for women in Roman and Hindu societies are more or less, the customs grown into a full-fledged law today i.e. the relevance of customs and religion in the transition phase of society from ancient to modern cannot be ignored. In his theory of ancient law pursues this transition by examining Hindu society and the strong implication of laws with religion and custom. Although there has been a change in laws providing women with more rights in property in an ‘essential’ survival unit i.e. family but this change has been slow and there are still existing grey areas in succession laws whether in the plain reading of text or in terms of its implementation where the rights conferred upon women by law are on paper and confined to signing documents as a wife, husband and mother.
Confining this paper to Hindu society, the shift from limited estate for a woman in 1937 to right of a woman to be a coparcener and even a Karta in property, the position of women as an individual holding rights in a property is still majorly affected by their position in that ‘essential’ survival unit of family. Maine’s theory of ‘status to contract’ has evolved in its true sense for men in Hindu society but for women, the change has been from status in a community to status in a family. In a society where the family dependency is much in existence than a preference for the individual self, the succession rights of women are governed by their status of a daughter, wife or mother only as argued by Henry Sumner Maine in his theory ‘from status to contract’ from ‘Ancient law’.
‘From status to contract’ is a theory by Sir Henry Sumner Maine which simply means that the rights, liabilities and duties of an individual(men) by law are not being fixed by virtue of his belonging to certain class or community as we move from primitive to modern society but that status is becoming more dependent upon the individual will of the people which will be affected in such arrangement and hence towards contractual nature, i.e. from status to contract.
Maine wrote this theory in regard to Roman society in 1881, but after he served in Indian colony under British empire, he contrasted this theory with Indian society, by seeking an example from India, Maine points to the structure of Indian village as a expansionary unit of a smaller unit family, where the origin of powerful decision is patriarchal in nature, he wrote the most important passage in the history of Private Property is its gradual separation from the co-ownership of kinsmen.
As the rights passed from co-ownership of community to an individual being, the movement from status to contract is evident but this movement was only limited to men in a family. It is pretty clear that while the development of this principle of status to contract, Maine was influenced by succession laws of Roman society and Hindu society as in these societies, the aspect of power played to a greater extent in a family unit, such that family is based less on the relationship and more on power.
For women, there was no status in a community as such other than what role she plays in her family, even if they shared the workload in primitive societies, women were subjected to discrimination in the issue of inheritance, not completely but partially, in a way that their rights are a factor of other social relations she has to abide by as a women. Even in current Hindu Succession laws after the 2005 amendment, the rights of women are still fewer than men in certain areas, both in the implementation aspect and plain reading of the law aspect.
Sections 8-13 and 14-16 of Hindu Succession Act lay down rules of succession for Hindu males/females, and the presence of varying laws for succession being itself a contradictory approach to equality. Hence, the unequal rules along with bad implementation of gender-equal amendments is disfavouring women largely, for example in Section 15(1) of the Hindu Succession Act, the intestate property of any Hindu female should devolve upon her husband and children while for a man, mother of the male Hindu intestate is having rights as Class I heir and gets to inherit equally with children of intestate. Also, in the matter of myself-acquired or achieved property as per Section15(1)(b) prefers the heirs of the husband as compared to heirs of her father in Section 15 (1)(d) and mother’s heirs as in (1)(e).
This leads to a consequence that her in-laws will inherit over own parents of a Hindu female, and this law is further followed in strict sense as given in a recent case of Om Prakash v. Radha Charanthe where Supreme Court held that in a case where the wife has been thrown out of her marital home after death of husband, and she acquired property after joining a job independently. The Apex court, in this case, held that if such intestate woman dies issueless, the heirs of husband would be given preference over her own parents, neglecting that she was thrown out of her marital home.
The innate preference for agnates over cognates is based upon the ancient standards and with all the above-mentioned gender unequal laws the amendments have also failed in achieving its objective. HSA in a way retains the old Shastric principle that a woman is no longer a part of her parental home after her marriage and it is evident in cases of a succession of Hindu female intestate. Till now, the plain reading of text gives us the idea of Gender unequal provisions of HSA but even for progressive moves like the amendments of 2005 which gave the right to woman to be a coparcener and even ‘Karta’ship for a married woman in her parental home the question remains how many women actually ask for their share in property from their parental home?
The language or the parts of a legislation being unequal for men and women are one thing but when amendment like 2005, making woman a coparcener in the ancestral property provided that both father and daughter were alive in 2005 and right of a married women to be a Karta if she is the eldest, it is most important to look at the implementation of it, especially in a society where the discrimination has no rational base and only based on gender performative roles of men and women. There are threefold reasons as to why women in Hindu society don’t ask for their rights under the 2005 Amendment in HSA and karta’ship.
First being the idea of daughter as ‘paraya dhan’ which means that once a daughter is married, she has to live in marital home and there would be no practical reason for her having a right in property, but it is ignored that if her husband dies or she has to part ways from her husband then she would have no resources. Secondly, the idea that only sons have to look after old mother and father and hence the share of a daughter should go as a reward to that son. Lastly, the fear that if a woman demands her rights in the property, she would ruin the relationship between her and her siblings.
As absurd as it sounds, but such reasons should not affect women asking for her rights in material resource but it is clear from the reasons that it is her position as a mother, sister or a wife or one can say her ‘status in family’ that is affecting the implementation of post 2005 gender-equal laws and according to Maine, any group is bound by the aspect of power, similarly family as a group is bound by power in hands of patriarch to which even the gender-equality amendments are unable to affect.
Maine in ‘Early History of Institutions’ writes “the theoretical assumption is that all the tribesmen are descended from some common ancestor, whose descendants have formed sub-groups, which again have branched off into others, till the smallest group of all, the existing Family, is reached.” In Hindu society, this movement from kinship to a smaller unit family, Maine writes about women that“they have begun to inherit a share of the property of the family concurrently with their male relatives, but their share appears, from several indications, to have been smaller, and they are still controlled both in the enjoyment of it and in the disposal.”
It is pretty evident that rights over property by women are still very much controlled by men even in enjoyment and disposal. Hence, there is a need to question both, the gender-unequal laws in HSA and gender-equal amendments like rights to be a coparcener for women in terms of implementation. A similarity can be drawn to Roman society through work of Maine, where even in Roman society, the family was based less upon actual relationship than upon power, and the husband acquired over his wife the same despotic power which the father had over his children.
There can be no question that, in strict pursuance of this conception of marriage, all the wife’s property passed at first absolutely to the husband, and became fused with the domain of the new family. Parallel can be drawn to families in Hindu societies that once married, the property of female Hindu passes to husband and his heirs even in present succession laws and the rights on property she has during her life are not absolute as the social structure requires women to perform the roles assigned to her by virtue of her gender and leave the decisions regarding property disposal to her brother, father and husband.
To conclude, it is clear from the status to contract theory of Prof. Maine, if applied in context of Hindu succession laws, the movement of rights and obligations from the status in a community or tribe to his individual has taken place while for a woman, the rights she had in a community were anyway negligible but when the rights of a man moved from collective to individual during the transition from ancient to modern, the rights of a woman have not transitioned from status in a community to individual, rather they have transitioned from status in a community to status is family.
Looking at the bare language of Intestate succession provisions for women in HSA, it is clear that the first preference for a property of woman is her new family even in case of self-acquired property and this comes from a classical approach of a woman as ‘paraya dhan’ and even in the amendments which aim for gender equality, like 2005 Amendment giving right to a woman to be a coparcener and case law giving karta’ship to a married woman, the status in a family is evident in the implementation as to how many women actually go and demand their rights in the property due to reasons like son taking care of old parents and that marital family is the new house for a woman and she has nothing to do with parental home.
It is hence evidently drawn out of Maine’s theory of ‘status to contract’ that in Hindu society, the shift from limited estate for a woman in 1937 to right of a woman to be a coparcener and even a Karta in property, the position of women as an individual holding rights in a property is still majorly affected by their position in that ‘essential’ survival unit of family. Maine’s theory of ‘status to contract’ has evolved in its true sense for men in Hindu society but for women, the change has been from status in a community to status in a family. In a society where the family dependency is much in existence than a preference for the individual self, the succession rights of women are governed by their status as a daughter, wife or mother.
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