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After Triple Talaq, a Look At the Other Discriminatory Personal Laws That Need to Go -Shalaka Patil
-TheWire.in

If the legislature is serious about introducing gender parity in personal laws, it should not focus all its energies on one particular religion.

In light of the Supreme Court’s recent decision to abolish instant triple talaq, a number of ostensible protectors of Muslim women in Indian politics came out in open support of the decision, lauding the cleansing of this oppressive religious practice. Of course, the government was the first to praise its ability to rid Muslim women of an evil they had suffered for decades. While the decision is welcome, the selective purging of personal laws of a particular religion does not send out the right message, especially since it is not as if other personal laws in our country are shining beacons. This would perhaps be an apt time to remind the government and the courts of a number of other personal laws that are retrograde, discriminatory and do not apply parity between women and men. That these laws will be noticed and repealed, however, is perhaps a pipe dream, given that they may not all provide the sort of political mileage required to win an election.

Obviously instant triple talaq needed to go – it is nobody’s case that the decision was bad law, in fact the 3:2 majority instead of a unanimous decision was surprising to many, although one can see merit in the logic of the dissenting opinions too (whether one agrees with them or otherwise). However, in a political climate like the current one, it is important for the state to respect personal laws. Choosing one evil in one religion and then parading it so publicly in the time of what some would describe as beef-policing, history-tampering, cow-worshiping majoritarianism sends the wrong message. Perhaps the government could serve women from every community better if it looked at other discriminatory personal laws as well and draft appropriate legislation.

Property devolving upon the heirs of a woman dying intestate

Under the Hindu Succession Act, 1956 (applicable to Hindus, Buddhists, Jains and Sikhs), Section 15, the property of a woman (to whom the Act applies) who dies intestate (or without a will) goes to her children and husband (I use the gender normative word since the Act uses that word). In their absence, it goes to the heirs of the husband. Only in the absence of such heirs can it devolve upon such woman’s mother and father or in their absence upon the heirs of her father and in their absence upon the heirs of her mother. So if a Hindu woman dies intestate leaving no husband or children, the husband’s family has a right over her property before her parents. There is a non-obstante caveat to Section 15 which states that if any property is inherited by the Hindu woman from her father or mother, such property would devolve upon the heirs of her father (notice how property inherited from her mother also devolves upon heirs of the father, thereby not even taking into account a possible situation of a separation or divorce between the parents). Similarly, if it is inherited from her husband or father-in-law, it goes back to the heirs of the husband (in the absence of children or grand children). But all other property (not inherited from her parents, husband or father in law), in the absence of a husband or children, goes to the heirs of the husband.

If I am to contrast this with the devolution of property of an intestate Hindu man, the property first goes to his children, his widow (again, the word used in Class I of the Act), his mother or his grandchildren, much like for women, but in their absence it goes to his father, brother, sister and so on. If these heirs also do not exist, the property devolves upon the “agnates” of the deceased and in the absence of agnates, lastly upon “coagnates”. Agnates under Section 3 (1) (a) of the Act are defined as two persons related through blood or adoption “wholly through males”, whereas coagnates are not “wholly through males”.

There are so many problems with this legislation. The language of the legislation – with the use of “husband” and “widow” depending on the gender of the deceased spouse, and agnates and cognates as being defined using the term ‘wholly through males’ – is insensitive, sexist and leaves a lot to be desired.

This is just the tip of the iceberg. The entire line of Hindu succession for intestate women is discriminatory. The property as received from a father or a husband goes back to that line (in the absence of other heirs mentioned above). This feature is unique to this particular Hindu personal law. At the first instance, in the absence of other heirs, the property goes to the heirs of the husband rather than the woman’s parents or siblings. The Bombay high court had declared Section 15 as discriminatory and ultra vires the constitution in Mamta Dinesh Vakil vs Bansi S. Wadhwa and the matter is pending an appeal before a division bench. In an older decision, the Bombay high court had upheld the constitutional validity of this provision. The legislature has not passed any law yet repealing this provision, despite recommendations from the Law Commission. What, then, is the impact of the Mamta Dinesh decision on this law? Does it apply only within the jurisdiction of the Bombay high court or does it apply to the entire country? Can the provision be treated as struck down in the absence of the decision being overturned? These knotty questions remain unanswered and legislative silence in this regard, though deafening, is also expected.

Even under the Indian Succession Act, 1925 (applicable to Christians and certain provisions to Parsis) the property of a man who dies intestate and without lineal descendants passes only in half to his widow, while the other half passes to relatives kindred to him.

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