May be it sounds like a pleasantry as this writing attempts to talk on establishing Hindu women’s rights to property in Bangladesh when whole world is progressing with a notion of equal rights for men and women in every sphere of life. Much has been argued on the issue of Hindu women’s right to property under the orthodox Hindu legal regime in Bangladesh. Hindu being the minor community in Bangladesh has been in deprivation of the efficacy of the expected changes and hence a flagrant non-compliance with the universal human rights normative framework as to twin principles of equality and non-discrimination and its own constitutional fundamental rights.
In comparison with the ancient practice, the prevailing legislation regarding property is much discriminatory and inhuman in nature. As in ancient society there was no question of inheritance and the society was divided in various small groups and all the members of these small groups would enjoy equal right in property. By the times the concept of inheritance has been evolved and like other religion people believing in Hinduism recognised their own personal laws regarding property right. There is huge divergence among the personal laws of various religion and the Hindu law is not the same in India and Bangladesh in respect of adoption, property, divorce, marriage etc.
Codification of Hindu law, which is applicable to Bangladeshi Hindus, was done during the British period. These are Racial Inability Remission Act 1850, Hindu Widows Remarriage Act 1856, Sati Regulation Act 1829, Child Marriage Restraint Act 1929, Earned Property Affairs Act 930, Inheritance Act 1925, Hindu Women’s Rights to Property Act1937 and Hindu Women’s Right to Separate Residence and Maintenance Act 1946. Bangladesh is still following all these codified laws along with Sashtric Hindu law as our country inherited all these through various political changes.
On the other hand our neighbouring country India has come out of these ancient Shastric Scripture based laws and passed several enactments for safeguarding gender equality. These enactments are- Hindu marriage Act 1955, Immature Children’s Property Act 1956, Hindu Minority and Guardianship Act 1956, Hindu Adoption and Maintenance Act 1956, Hindu succession Act 1956 and Special Marriage Act 1960.
Constitutional validity of gender discriminated/biased personal laws:
Alike other countries, our Constitution also enshrined the most popular principles of equality and non-discrimination by its various articles such as articles 27, 28 and 29 etc. Besides, the state can make special laws for the advancement of any backward section of the society which clearly shows strong intention to create an equality-based property laws for all women in our society. In spite of all these very often it is argued that the application of personal laws even though they are discriminatory should not be justified in the parameter of article 7 of our constitution which clearly place the constitution as the supreme law of the country and recognised other existing laws not complied with the constitutional provision as null and void to that extent of inconsistency. Though the Women policy of 2011 came with various prospective clause regarding the equal and absolute rights of women over all kinds of property which could be a authenticated solution for the discrimination against the Hindu women’s property rights in Bangladesh but that attempt lost in vain because of illogical and unnecessarily vehement opposition from various fundamentalist group.Devolution of self-acquired property –A cloudy area
It at times sounds as like a pleasantry when we endeavor to talk on rights to devolution of self -acquired property of Hindu women in our country where the Hindu girls are totally excluded from being inherited in existence of son. Any properties obtained by this process during her maidenhood or widowhood are considered as Stridhan according to all school of Hindu law. But as per Dayabagha school any property acquired during the marital relationship through her skills or exertion would not be considered as Stridhan. So the women in Bangladesh cannot exercise full control over the property which was acquired by their own skills. As the self-acquired property is not considered as Stridhan so it would be devolved as widow’s state in our country.
But in India though at first instance they didn’t distinguish between self-acquired property and separate property later this issue was considered by the Indian law commission. They suggested there options for devolution of separate property of Hindu dying intestate, namely;
a Her self-acquired property should devolve first upon the heirs of her husband
b Her self-acquired property should devolve first upon her heirs from the natal family and
c Her self-acquired property should devolve equally upon the heirs of her husband and the heirs from her natal family.
Here the first option is based on preference of status quo. The second option is based on the preference that most married women give and the third option.
Despites the above suggestions of Indian law commission the judiciary was not so much concerned before it was first time arose in 2009 in Omprakash V Radhacharan, where the dispute arose among the son of the sister of deceased’s husband and the deceased mother and brother. They all claimed a preference inheritance rights upon the provident fund of the deceased self-employment as the deceased’s in-laws didn’t have any contribution for that.
The court accepted that the law is silent about this matter whether it should take general principles of inheritance or it should be fallen under the exceptional provision of general clause, as the general rule didn’t make any distinction between separate property and self-acquired property so that this was hard case, the court didn’t invoke any different interpretation of statutory provisions. So it was held that sympathy or sentiment should not be a lone guiding factor in determining the rights of the parties which was otherwise ambiguous. It opined that the self–acquired property not property acquired by inheritance from her natal family. So it should be devolved on her husband’s relatives rather than to her own blood relations. But later on it was discussed that the supreme could go beyond the strict provisions of law as it was empowered under article:142 of the Indian constitution to do justice through eradication of gender in-equality within the laws for men and women regarding property devolution.
Though after five years of law commission’s report a bill regarding the Hindu succession (Amendment) Bill 2013 for self-acquired property of Hindu Female.
Hindu women’s right to property in Bangladesh and India:
In Bangladesh though five classes of women inherit property but they are being excluded in presence of male counterpart.According to Dayabagha School of Law the term Women’s property, a common term, which includes both
a. Stridhan- Property over which a Hindu woman has absolute ownership and control and
b. Widow’s Estate –Property over which she possesses only a limited interest or life interest not absolute owner.
The Hindu Succession Act of 1956 codified the law of succession of Hindus in India and introduced a uniform law of succession, applicable irrespective of the school.The new law is based on the Mitakshara principle of nearness of blood, consanguinity or proximity of relationship and not on the Dayabagha principle of religious efficacy.Thus the modern Hindu law of succession is essentially a secular law.
The Act of 1956 gives women –
i) The right to hold property as absolute owners
ii) The status of co-heirs with their brothers in the father property and
iii) Makes a daughter’s inheritance share equal to that of sons
Abolition of the limited estate of females in India is one of the most significant changes brought about by the Act of 1956.ection -14 declares the absolute ownership of a female over all types of property except those about which there is any instrument prescribing limited right.
Section -14 has been given retrospective effect and converts an existing woman’s estate into stridhan or absolute estate subject to two conditions,possession and ownership.
Section 15 states that the property of a female Hindu dying intestate shall devolve:
a. Firstly, upon the sons and daughters (including the children of any predeceased son or daughter ) and the husband
b. Secondly, upon the heirs of the husband
c. Thirdly, upon the mother and father and
d. Lastly, upon the heirs of the mother.
After the enactment of 1956’s Act the concept of widow’s estate became inappropriate in India and widows inherit along with a son. Under the above mentioned Act an adopted daughter was included within the definition of daughter and also put her in the class I heirs.
Uniform family code
Many of our women rights activists very often give preference for having a uniform family code irrespective of religious personal laws for ensuring gender justice among the women in our country. It will be really a gigantic step if we able to introduce a uniform code in near future. Most often we observe that not only all political governments but also the Hindu community itself are not so willing to bring any change in their personal laws. Sometimes it is discussed to run two fold personal laws system one is unified what will be applied common to all irrespective of their religion but it will be optional in nature. So if anyone is not willing to follow the unified code he/she can observe their own personal law. Although the demand for the adoption of a uniform family code has in no way disappeared, even its most enthusiastic supporters to a certain extent realised that by and large such radical changes are not feasible at the present time for social, cultural and political scenarios.
It is high time to raise our voice for Hindu women’s equal rights to property. They are being burdened with equal liabilities along with a son for the maintenance of their parent’s under the Mata PitarVoronPoshonAin 2013. So, it would be more painful for the Hindu women to bear the liabilities without having any property right along with their male counterpart.
The writer is a Lecturer of the Department of Law, East West University