The Stranglehold of State Patriarchy
THE STRANGLEHOLD OF STATE PATRIARCHY
Newsletter March 1997
Entrenched patriarchal and class interests continue to be maintained by the denial of basic economic rights to women. And personal laws form the basis of exploitation of women in our society, in the name of religion and family. This continuation of personal laws over years, with changes being resisted by religious leadership, the State and patriarchal interests, is directly linked to women’s unequal inheritance rights and lack of control over common property resources. No legislative initiative is ever taken to accord women’s right to matrimonial home or property, or even a substantial maintenance. While the State brings no change in the status quo to benefit women, at various times it has instead, made interventions to counter positive measures that were to come about by collective or individual struggle by women. Such situations more often than not have had to do with the question of women gaining more economic rights. This reveals the anti - woman character of the State. It also shows how change in personal law will be resisted by all those who stand to lose if women were to gain more rights.
Though Hindu personal laws have been extensively reformed to give women less of a raw deal, inequalities persist in certain key areas. Property continues to go down the male lineage. Women have no coparcenary rights in ancestral property but are otherwise Class 1 heirs of their father’s property. However, women are deprived of their share even in that. A coparcener has a right to convert self - acquired property to coparcenary property. It is done sometimes to reduce payment of income tax but in this way, the share of the female heirs gets reduced. Secondly, a coparcener has the right to renounce his coparcenary rights and thus deprive the daughter of the property she would have inherited upon the father’s death.
Daughters do not have the right to partition but only the right of residence in the ancestral home. Even the right to residence is accorded, if she is unmarried, deserted or widowed without a house. Daughters who are otherwise Class 1 heirs in the father’s property are deprived of their rightful share in case dwelling house is the only property.
In March ’85, Lata Mittal had filed a writ petition in the Supreme Court challenging the constitutional validity of the Hindu Succession Act, 1956 (HSA), as it violates the right to equality on basis of gender. This Act only allows a male to become the ‘karta’ or head of a Hindu Undivided Family.
The amendment of the Special Marriage Act (SMA) by the State is yet another instance that highlights how it benefited Hindu men over men of other communities, and how it deprived Hindu women marrying under this Act. The SMA, 1954 made it mandatory for those marrying under this Act to be governed by the Indian Succession Act, 1925. Hindu males marrying under the SMA are deprived of any share in joint family property. The amendment of the SMA in 1976 made it possible for two Hindus marrying under this Act to be continued to be governed by the Hindu Succession Act, 1956. While Hindu male privilege continued as before in property rights, Hindu women marrying under the SMA were deprived of the relative benefit the ISA held for them.
Dispossessed Daughters of the Soil
Women’s access to agricultural property and land rights is severely limited. In subsistence economies, women labour hard within the house and also take part in agricultural activities but they have no rights in the land resources. This is the reality of a large majority of women in this country for whom land would be the only asset. Agricultural land does not come under the purview of personal laws. If at all women have very limited rights in other forms of property, these rights become totally inapplicable in case of land rights, as such matters come under state level tenurial legislation or the relevant customary law. This is well illustrated by the Delhi Land Reforms Act 1954, which prohibits married daughters from inheriting land, and gives unmarried daughters very limited right of maintenance from the land. The Act even prohibits a father from willing away his share of agricultural land in a joint family property. Women disadvantaged by these provisions are challenging the Act in a spate of criminal and civil litigations.
The HSA, 1956 granted exemption in favour of special rules providing for devolution of tenures due to which nothing in the Act would affect provisions in matters of tenancy rights in agricultural holdings. In this way, multiple tenancy laws continued. Some states opted for the HSA, some promulgated their own laws, while others continued with existing laws. This ambiguity resulted in customary or personal laws getting de facto recognition in several places, to the disadvantage of women. Furthermore, all tenancy and land reform legislations are under the IX Schedule of the Constitution and therefore cannot be challenged on constitutional grounds, as violations of Fundamental Rights. Although this was done to prevent litigation from slowing down the process of land reform, the fall-out has been that women cannot challenge the gender unequal aspects of these Acts.
Reform for Whom?
On one hand, inheritance rights have never been in favour of women. On the other, the State uses law in its own interest to privilege certain sections or create safeguards for claiming on the basis of fundamental rights. Yet another significant method is for the State to intervene and undermine whatever progress women made, both collectively or individually. The spate of events in Kerala in the aftermath of Mary Roy’s legal victory show how the State and clergy connived to retain patriarchal privileges even to invalidate progressive court judgements.
Mary Roy had challenged the validity of the Travancore Christian Succession Act, 1916 in the form of a writ petition filed in the Supreme Court in 1982. In 1986, the Supreme Court ruled that the ISA, 1925, would become applicable giving equal rights to Syrian Christian women with their brothers in the father’s share. Prior to this, daughters could inherit only 1/4th of the brother’s share or Rs. 5000 whichever was less. Besides bringing in the ISA, the Supreme Court made the Travancore Act invalid from 1951 onwards and the cases settled since then were opened up for dispute, with retrospective effect.
The Church and the State responded aggressively by organising meetings, pamphlets, announcements etc. The Church actively helped men to draft wills that disinherited daughters. In this way, religious leaders uphold male privilege and also assume the position of community spokespersons. The Government sought to invalidate the retrospective effect of the judgement, by means of a review petition which was rejected. The Travancore & Cochin Christian Succession (Revival & Validation) Bill, 1994 was introduced. Fearing defeat in the Kerala Assembly, the Government attempted to get the President to bring it in through an Ordinance. Women’s groups actively campaigned against this move of the Kerala Government and appealed to the President not to give his approval.
The entire effort of the Church and the Kerala Government to invalidate the retrospective effect of the
Supreme Court judgement is indicative of how tough it is for women to get some justice, despite favourable court judgements. The Indian Government has consistently maintained that it will not interfere in the personal law of any community, and would consider any change that is coming as a demand from within the community. It is clear that community gets represented only by its religious and male leadership.
The personal laws governing the Christian community are more than a hundred years old. Despite the extensive campaign and efforts made by Joint Women’s Programme and other women’s organisations, the bills introduced by Christian women continues to be ignored by the Government. They are the Christian Marriage Bill 1994, ISA Amendment Bill 1994 and the Christian Adoption & Maintenance Bill, 1994. When women’s groups have appealed for change, in the form of a bill, what would be considered more appropriate as a community voice?
This stand of the Indian Government, that it will not interfere in religious personal laws, is but a ploy to delay any progressive changes for women. When it suits the occasion, the Government does interfere in personal laws of minority communities. This is evident in the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which deprived divorced Muslim women of any claim to maintenance. It happened when the government had to give in to the pressure of Muslim fundamentalists. What gets ignored as community voice is the voice of women, while fundamentalist and religious forces are given recognition by the State.
The case of Arunachal Pradesh again shows how demands and changes being fought for by women are brushed aside by the State to retain discriminatory and archaic laws and practices. The Arunachal Pradesh Women’s Welfare Society, along with several other organisations, had been demanding the codification of its customary laws with special protection for women and children. The Government paid no heed to these demands and in a one day special assembly session on 4th November 1994, introduced the “Arunachal Pradesh Bill for Protection of Customary Laws and Social Practices, 1994” without any discussion or debate. While women’s groups were actively seeking the codification of the customary laws, state intervention gave it special protection in the form of a bill, in the most arbitrary manner. Polygamy, child marriage and the practice of bride price has made women’s status very low, without any rights in property. Such a Bill only sanctifies these practices. At present, a number of organisations are campaigning to prevent the Bill from becoming an Act.
The Indian State has been a party to the gradual erosion of tribal women’s economic rights. While customary laws in tribal communities had evolved over a period of time according to local needs and systems, the process began getting undermined under British rule. With the British granting pattas (titles) to individual men as head of the household, women’s contribution to economic activities and ownership rights got negated. This continued in the post-Independence period too. What came into practice in large areas, were aspects of Hindu Law which brought in inequalities for women. As a result, tribal women got disinherited in a gradual manner.
While it is true that women in tribal areas do enjoy some degree of social freedom, they have virtually no rights in property matters. Santhal and Bhil women have been demanding protection from polygamy and inheritance rights in father’s and brother’s property. Madhu Kishwar had filed a case for women of the Ho community, filed in 1982, demanding equal property rights for women of the Ho community. The Warlis in Maharashtra have also been asking for property’ rights giving them equal share with their husbands and brothers. While Mizo women are portrayed as liberated, the Mizo Women’s Organisation states that women continue to be governed by obsolete customary laws pertaining to inheritance and maintenance. Despite their demand that these laws be reviewed, the government remains silent on this issue. These and other instances are making it amply clear that women in tribal societies are increasingly raising their voices for equal economic rights.
Our experience shows that whenever the demand for change is made by the women of a particular community and it challenges patriarchal and other vested interests, the Government conveniently turns a deaf ear to the demand. In the Sarla Mudgal case, the Supreme Court ordered the State to translate the Directive Principle for an UCC into a reality. However, it became the turn of the United Front Government to file an affidavit to the effect that it will not introduce the Uniform Civil Code unless the initiative for change comes from within the community itself. Very recently, on 28th of February, the Supreme Court ruled out any intervention by the Courts in personal laws, and said that only the Legislature can bring about any amendments. This judgement was passed while dismissing three Public Interest Litigations filed by the Ahmedabad Women’s Action Group, the Lok Sevak Sangh and Young Women Christian Association, challenging certain discriminatory provisions of the Hindu, Muslim and Christian personal laws. It is all the more imperative to build public opinion and put pressure on the government to enact egalitarian laws for all women. Only a concerted widespread campaign by women can make the dream of ‘justice for all women’ a reality.
Kerala High Court Invalidates Sec.10 of Indian Divorce Act.
The Kerala High Court, in 1995, issued a landmark judgement by declaring Section 10 of the Indian Divorce Act to be unconstitutional, as it violates Article 14 and 21 of the Constitution. Divorce laws for Christian women are based on the archaic Indian Divorce Act of 1869 (IDA), which is more than a century old and has several discriminatory aspects. This small and welcome change in the Act has come about by two women who challenged the Constitutional validity of this particular section.
According to Section 10 of the IDA, while a husband could seek divorce on grounds of adultery alone, a woman has to prove not only cruelty or desertion, but also adultery on the part of her husband. As it is, adultery is extremely difficult to prove in a court of law. Consequently, the law compelled Christian women to continue to suffer cruelty at the hands of her husband, with no option to obtain divorce. Even women deserted by their husbands for many years could not secure divorce. The Kerala High Court held that Sec.10 deprived the wife of any sense of dignity or personal liberty ensured by the Constitution.
The Court held that such a sub-human life is legitimised only by an authoritarian and tyrannical law. In 1990, the Court gave time to the Government of India to give effect to a recommendation of the Law Commission which had earlier suggested the amendment of Sec. 10 of the IDA, since it violated the Constitutional mandate of equality before the law. The Government of India deliberately ignored the High Court direction. Hence, at the time of the final hearing, the Kerala High Court was compelled to strike down the provision of Sec.10 as unconstitutional. This is a small but significant gain for Christian women in Kerala which can also be used as a precedent by Christian women elsewhere.
The Ecclesiastical Tribunal can no longer Annul Marriages!
In November 1996, The Supreme Court gave a judgment that Churches cannot annul marriages through the Ecclesiastical Tribunal (Church Court) and that only the Indian Divorce Act, 1869 would be applicable to Christians seeking divorce. It also held that any order or decree passed by this Church Court could not be binding on the district and high courts. It further said that, when legislature enacted a law, even in respect of the personal law of a group of persons following a particular religion, the statutory provisions shall prevail and override any personal law, usage or custom prevailing earlier. It is a significant move, because earlier many churches did not recognise the court divorce. If anybody desired to remarry, they had to file for
annulment with the Church Tribunal even if they had a legal divorce. Or an annulment in the church entitled them for remarriage. This power has been overruled by the Supreme Court.
Some Major Amendments
* Kerala has struck a blow to the system of joint family property by passing the Kerala Joint Hindu Family System (Abolition) Act, 1976. By virtue of this Act, all family members hold equal shares as full owners.
* There have been two amendments in 1939 and 1991, in the Indian Succession Act, 1925 which is applicable to Parsis. Earlier daughters used to inherit half of what the widow and each son got. With the ISA (Amendment) Act, 1991, the widow, sons and daughters get equal shares.
* The Hindu Succession Act has been amended in four states to give coparcenary rights to unmarried daughters, with equal rights as sons in joint family property. These states are: Andhra Pradesh (1986), Tamil Nadu (1989), Maharashtra (1994) and Karnataka (1994). How effective these changes will be in practice remains to be seen.