“FEMALE AS KARTA OF FAMILY: MEN THEY ARE GONE…”

By Apoorva Yadav,

Final Year, National Law Institute University, Bhopal

INTRODUCTION

The concept of “manager” of a joint family has been in existence for two thousand years or more[1]. The constitution of our country provides for equality for all. But it is sad to know that even after 60 years of our independence there is still difference between males and female. Society considers males as more capable of running all tasks. In spite of the fact that women are excellence in every field our Hindu scriptures gives more rights and privilege to a man.

Karta of a family is plays an important role in the family. The person in this position performs all managerial roles. And it is no doubt that women are more capable than man in managing the affair of the family. In a Hindu joint family, the Karta or manager occupies a pivotal position. Such is his position that there is no comparable position in the world as that of a Karta.

The paper here gives arguments in favour of Female as Karta of family. The recent enactments in state like Kerala throws light on the fact that the enactments would lead to women empowerment. There have been conflicting views regarding the status of women as karta of family. This concept is not new rather it came earlier also and there have been divergent views over the question of females as Karta of family. There is a divergent view on this in Nagpur High Court and in madras position.

The changes will have far-reaching social and legal implications for Hindu society. There is also an emerging view that the Mitakshara joint family system should be abolished. The paper here also focuses on the law commission report, and latest amendments made in various states.

STATEMENT OF PROBLEM:

Can Female Member Of A Mitakshara Family System Become A Karta Of Family?

Let us suppose there is a family consisting of two brothers, their wives and their children, all the latter very young. Now the senior brother dies. The wife and children will not suffer, because the young brother survives and he would represent the family (if he is fit to do so), and act as manager. Now let us suppose that the young brother also dies, and the family consists thereafter of two widows and their respective children. The lady may be natural guardian is not doubted but they might wish to do for their children certain acts which their husbands wanted to do. For which they have limited right as a guardian.

BACKGROUND

There might be thousand of families in which the eldest member or the father has died and the mother is the defacto manager of the children’s affairs. It therefore becomes important that female member of the family should be given the power to act as Karta of the family.

There is yet another problem that is that there might be a case where the husband or father has left the family or has lost. There existed the problem of died coparcener and also of lost coparcener in earlier times also the problem was prevalent. In ancient times long absence of husband or his becoming a sanyasi would by themselves clothe other members of the family with greater freedom of action.; but even then there in ancient times there was always a period of grace during which the father -husband might return and resume the statue and responsibilities, and during that period the question would arise as to who might deal with the family property.[2] Naturally, as we shall see, emergency provisions existed, though these are not as well known today, as they ought to be.

There existed provisions relating to the position of wife in case either husband or father has left the home or when the father or husband has died. Thus the sages and the dharamsastra have an answer to the problem of maintenance.

THE DHARAMSASTRA SOLUTION

Sastras contain adequate provisions, whereby females can be managers. The sastra is clear that in absence of the senior member of a junior member (if he has reached the age of legal competence) may incur debts for the needs of the family and, in absence of a male member a female member may do so. Debts incurred even by a female member in such circumstances will be binding upon the family and must be paid out of the joint family funds, whether at partition, or earlier. since debts would not be incurred without granting security of some kind, and since the most favored type of security in ancient times was a mortgage of land, we can be quite sure that in proper circumstances the mother of the family ,whether her husband was alive (but absent) or dead ,could validly bind the minor's property ,whether it was his own use or his interest in coparcenary, and likewise the interest of minor coparceners., whether they were her sons or other ,in order to pay debts properly incurred by her. The test was whether her act was for the benefit of the family, and there is no reason whatever, to doubt but that in this indirect manner a female member might act as manager, doing acts of positive benefit to the family and not merely conservative or protective or negative acts.[3] The fact that a male member of the family or even an agent might in nine cases out of ten actually negotiate or handle the business has no bearing on our question, whether she had the capacity so to bind the family: and the sastras plainly enough shows that she had it.

There are number of Sanskrit shlokes in which it has been clearly written that at time of distress a female member can definitely incur debts and that such debts would be binding on all family members. They are as follows:

Sishyantevasi-dasa-stri-vaiyavittyakarais ca yat

Kutumbahetor ucchinnam vodhavam tat kutumbina

This means, “The manager (or householder, actual or eventual) is liable to accept (or admit) all alienations made for the purposes of the family by a pupil, apprentice, slave, wife, agent or bailiff”

The inference is that any alienation for maintenance or even for less necessary purposes (provided they are the family’s benefit) will be binding upon the manager (when he returns or appears on the scene by simply coming of age, as the case may be) because in his absence the implied authority rests with his fellow members of the family who, though not major coparceners, are able to transact business in such emergencies.

Narad gives some more information regarding the position of females in the following sholak

Na ca bharya -kritam rinam kathancit patyar abhavet

Apat kritad rite, pumsam kutumbartho hi vistarah.

It may be translated as follows, “a debt contracted by his wife never binds the husband, except that incurred in a time of distress: expenses for the benefit of the family fall upon males.” thus an act in the family’s interest will be binding if no male major member of the family is available.

Thus it may be admitted that the Sanskrit texts speak of a women binding the family property in what amounts to emergency or quasi -emergency conditions by acts, including debts and alienations, which would otherwise be within competence of a male manager. There is no distinction drawn between a wife and a bailiff, who would be unquestionably authorized to manage and exercise powers of management. The supposition behind all theories is that the women is defacto swatantra as soon as the husband returns or her son reaches majority she becomes parantatra again, but meanwhile the responsibility rests with her ,and powers should obviously be allowed to her accordingly.

The judges have given their own interpretations to the role of women as manager of family. Regarding this there is conflict in views of the Nagpur High Court and the Madras position.

THE NAGPUR POSITION ON THE SUBJECT

The Nagpur High Court perished, but without leaving a progeny. In a conflict between the Bombay decision and a Nagpur decision the Bombay decision would bind the Nagpur bench of the Bombay High Court .But the merits of the cases in conflict must be investigated in any event, especially where as, in this instance, the Nagpur view has penetrated here and there and commended itself to many courts.

The beginning of the Nagpur view has not been sufficiently understood in all quarters. It lies in Kesheo v. Jagannath [4].there, as far as in 1925, the Full Bench held that any adult member may be the manager of the joint family, by alienation of the joint family property, in whatever character she purports to act. The ratio was simple. In this case it was laid done that a sale by a Hindu widow, managing the estate of her minor son and stepson, of a part of the moveable property belonging to the estate for necessary purpose is valid and binding on the stepson. Hallifax, A, J, C said that any adult member of a joint family can be a manager of family.

Hanoomanpersaud’s case is one of the greatest cases in the history of the Hindu law. It dealt with the powers of widow mother as manager of the property of her minor son, and was in reality a case in the context of manager ship rather than guardianship properly so called. The test of the lady’s act was not who she was or in what capacity she purported to act, but whether the act was necessary or in the minor’s interest as understood by the law. In this case the mother was held to be manager de facto and she could incur debts which were necessity and were held binding on the minors.

The view was followed in Pandurang Dahake v. Pandurang Gorle.[5] Here the widowed mother passed a promissionary note for necessity as guardian of her two minor sons. She was defacto manager and was held to have managerial powers, and the sons could not repudiate the debts. Naturally the court is not willing to lend its aid to schemes for defrays honest creditors of the family. In I.T Commr. V. Laxmi Narayan[6] the question was whether Mt. Kesar bai can enter into a partnership deal as Karta of family consisting of herself and her minor sons. Pollock and Shevde JJ. Said, “it is true that under the Mitakshara law no female can be a coparcener with male coparcener, presumably because she do not possess the right by survivorship, but we do not think that either this right or status of a coparcener is a sine qua non of competency to become the manager of a joint Hindu family of which she is admittedly a member. She was considered as Karta of family. Referring to Kehavbhai v.Bhagirathi it was contended that if a female can act as a manager of a religious endowment in which she has no personal interest, there is apparently no reason why she cannot act as the manager of a joint family estate in which she has admittedly personal interest.

THE MADRAS POSITION

The madras view is simplicity itself. It does not put managerial powers in female. In Radha Ammal v. I.T Commr , Madras[7] case the court said, “The right to be a manager depends upon the fundamental fact that the person on whom the rights devolve was a coparcener of the joint family. If a person is not a member of coparcener and outside it, he has no right to claim a representative capacity on behalf of other coparcener with reference to the family. The right is confined only to the male members and female members wee not treated as coparcenaries. In Seethabai V.Narsimha[8] the court said that to be a manager one must be a pukka coparcener, a male with a birth -right and not a mere statutory interest. The argument that Hunoomanpersaud ‘s case allowed the act of defacto manager to be binding even if she were a women, was not noticed, much less examined. This was a weakness in the madras decision, which was in any case strictly formal and anti- aquarium in its approach. Nevertheless it had the merit of not disturbing what appeared to be the traditional position so long as conclusive reasoning had not been produced against it.

In the Bombay High Court it was alleged in Rakhmabai V.Sitabai [9] that a stepmother as manager of a joint family consisting of her co-widow and minor stepson and a minor stepdaughter, had the power to resist the appointment of a guardian of the property of the stepson. She was managing the estate and her authority should not, it was urged, be undermined by such an appointment. But the learned judge Dixit, J, said that in such a case the proper course was to appoint a guardian for the coparcener property. A widow could not be a manager of joint family property. The case of Seethabai in Madras was noticed and agreed with. Thus, at the time of writing, it appears that the Bombay High Court sides with Madras and against Nagpur, Unfortunately, the Nagpur decisions were drawn to the learned Judge’s attention only by way of the Madras decision above-mentioned, which takes a dim view of the earlier of them. There is no trace in the judgment of Dixit, J., that Laxmi Narayan’s case, of two years earlier, was cited or examined.

The Orissa High Court, which has experienced the greatest difficulties with this topic, was faced in 1955 with the problem of a father who absent for many years. An absent father is demonstrably not the same source of difficulties as a dead father, and to one who does not know the dharamsaatra on the subject an opening for a distinction at once presents itself. From the minor’s point of view it is all one whether the father is indefinitely absent or dead. In Maguni Padhano v. Lokanidhi Lingraj Dora[10] ,it was held that a mother, whose husband is alive, couldn’t be a manager , she might indeed act as guardian of her son, if her husband was dead, and perhaps as de facto guardian of her son. But as manager she had no powers whatever. Laxmi Narayan’s case was not followed. The principle that a woman could be a manager was decisively rejected.

On this it can be definitely said that the Madras has best out of all.

With respect of position of women under mitakshara joint family system certain recommendation and certain new amendments have been made. I would now introduce these latest amendments with respect to 174^th Law Commission Report.

Patrilineal Hindu law is divided into two schools, the Dayabhaga and Mitakshra. Dayabhaga prevails in West Bengal, Assam, Tripura and in most parts of Orissa whereas Mitakshara is followed in the rest of India. Mitakshara law is again divided into Benaras, Mithila, Mayukha (Bombay) and Dravidia (Southern) sub-schools.

Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu family. It seems that this discrimination is so deep and systematic that it has placed women at the receiving end. Recognizing this the Law Commission in pursuance of its terms of reference, which, inter-alia, oblige and empower it to make recommendations for the removal of anomalies, ambiguities and inequalities in the law, decided to undertake a study of certain provisions regarding the property rights of Hindu women under the Hindu Succession Act, 1956.

The Hindu Succession Act, 1956 (HSA) is an uneasy compromise between the conservatives who wanted to retain the Mitakshara coparcenary and its discrimination against daughters, and the progressives who wanted to abolish the Mitakshara coparcenary altogether. In essence, the Act retained the Mitakshara coparcenary. But since last two decades, five southern States took steps to enact remedial legislations to correct the discrimination against daughters

Now I would discuss the various amendments in various states:

Five States in India have amended the law relating to coparcenary property. Four States, viz., Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka, have conferred upon daughters a birthright in coparcenary property. Kerala has abolished the joint family system among Hindus

Kerala Legislature took the lead in 1976 when it passed the Kerala Joint Family System (Abolition) Act, 1976 (hereafter the Kerala Act). This legislation broadly followed the recommendations of the Hindu Law Committee - the Rau Committee1 - and abolished the right of birth under the Mitakshara as well as the Marumakattayam law. On the other hand, the Andhra Pradesh Legislature conferred the right by birth on daughters who are unmarried on the date when the Act came into force. This approach, instead of abolishing the right by birth, strengthens it, while broadly removing the gender discrimination inherent in Mitakshara coparcenary. The States of Tamil Nadu (1989), Maharashtra (1994) and Karnataka (1994) followed the Andhra model.

KERALA AMENDMENT- The Joint Hindu Family System (Abolition) Act, 1975, Kerala.

The State of Kerala has abolished the concept of coparcenary following the recommendation of the Hindu Law Committee - B.N. Rau Committee (which was entrusted .with the task of framing a Hindu Code Bill. what is known as the Kerala model, the concept of coparcenary was abolished and according to the Kerala Joint Family System (Abolition) Act, 1975, the heirs (male and female) do not acquire property by birth but only hold it as tenants as if a partition has taken place. Kerala was the first state to launch an attack on the right by birth and the discrimination inherent in it, by enacting The Kerala Joint Family System (Abolition) Act 1976. Section 3 of the Act says no right to claim any interest in any property of an ancestor during his or her lifetime which is founded on the mere fact that the claimant was born in the family of the ancestor shall be recognized in any court. The legislation is an overkill, because it not only abolished the right by birth vested in males under Mitakshara law, but also the right by birth vested in females under the Marumakkattayam law. The Act follows the language of the draft Hindu Code Bill closely.

ANDHRA PRADESH MODEL-The Hindu Succession (Andhra Pradesh Amendment) Act, 1986

The Andhra Pradesh legislation in 1985 adopted a different approach in an attempt to put an end to discrimination inherent in the Mitakshara coparcenary. It confers right by birth on daughters who are not married on the date when the Act came into force. Thus the language is wide and in the states where the amending Acts are in force a daughter-coparcener can become a Karta (Manager) of the joint family. An anomaly in this context should be pointed out. Five states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka have taken cognizance of the fact that a woman needs to be treated equally both in the economic and the social spheres. As per the law of four of these states, (Kerala excluded), in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son.

KARNATAKA MODEL-The Hindu Succession (Karnataka Amendment) Act, 1994.

In some respects the new amendments introduce far-reaching changes in the law of joint family. Section 29-A Section 6-A of Karnataka Act says that a daughter of a coparcener "shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son ... and shall be subject to the same liabilities and disabilities in respect thereto as a son".

Turning to her rights as a son, she will be entitled to be a Karta of the joint family, and will by virtue of that position exercise the right to spend the income for joint family purposes and alienate the joint family properties for legal necessity or benefit of the estate. In popular perception as well as under the Shastric law, a daughter on marriage ceases to be a member of the parental family; but the Amending Acts change that position and a daughter will not only continue to be a member of her parental family, but also can be the head of the family.

The language of these amendments is identical. The amendments of Tamil Nadu, Andhra Pradesh and Karnataka are prospective. The Maharashtra Amendment though published in December 1994, operates retrospectively from 22-6-1994, when the Government of Maharashtra declared its policy for women. The discussion is confined to the provisions in the Maharashtra Act, and the comments would be applicable to the identical laws of the other three States.

174^th LAW COMMISSION REPORT

The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favor of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State and inter-alia also provide that the State shall endeavor to ensure equality between man and woman.

Notwithstanding these constitutional mandates/ directives given more than fifty years ago, a woman is still neglected in her own natal family as well as in the family she marries into because of blatant disregard and unjustified violation of these provisions by some of the personal laws.

The 15th Law Commission, headed by Justice B P Jeevan Reddy, has suggested fundamental changes in the Hindu Succession Act 1956 to ensure that women get an equal share in ancestral property. One of the radical changes suggested as part of the Hindu Succession (Amendment) Bill 2000 is equal rights for daughters in coparcenary property

The new Bill is a combination of the Andhra and Kerala models. The report says the Commission was inclined to recommend total abolition of the Hindu joint family, saying this is the ``only fair thing as women do not have any rights by birth.'' But for now the Commission has only recommended that daughters be first made coparceners by birth. The changes will have far-reaching social and legal implications for Hindu society While an equal share in their ancestral movable and immovable property, including the family business, would result in their economic empowerment, hopefully improving the lot of millions of victims of gender discrimination, the development could also lead to increased family conflicts, especially where established family businesses are concerned.

Under the new provision, the `Karta' or the eldest male member will no longer be empowered to take all decisions concerning family business or property since the sons and daughters will hold an equal share and anyone can ask for a partition.

Under the proposed amendment, if the eldest child happens to be a daughter, she will be entitled to act as a `Karta' of her parental family and discharge the `pious obligations', including marrying off the unmarried children, paying off the parents' debt etc, hitherto the prerogative of only the eldest male member.

The Law Commission is trying to ascertain the body of opinion whether the Mitakshara joint family should be retained or not.

Questionnaire and its responses:

A questionnaire was issued by the Law Commission to elicit the views of the public regarding giving of rights to a daughter in the Mitakshara property of a Hindu undivided family The responses received relating to various issues of the questionnaire have been analyzed and tabulated

Steps to be taken to remove gender discrimination:

However, the majority of the respondents suggested that, even if, the Mitakshara Coparcenary is retained, though it would be better if it were done away with the gender bias in HSA should be removed. Consequently, they wanted a daughter to be given the right by birth to become a coparcener like the son.

Daughter becoming a Karta in the Joint Family in case Mitakshara Joint Family is retained.

About half the respondents wanted the daughter to become a Karta in the Joint Family if the Mitakshara Joint Family is retained.

RECCOMENDATION BY THE LAW COMMISSION

As a first reaction the Law Commission was inclined to recommend the adoption of the Kerala Model in toto as it had abolished the right by birth of males in the Mitakshara coparcenary and brought an end to the Joint Hindu Family. This appeared to be fair to women as they did not have any right by birth; but on further examination it became clear that if the joint Hindu family is abolished as on date and there are only male coparceners, then only they would hold as tenants in common and women would not get anything more than what they are already entitled to by inheritance under section 6 of HSA. So the Commission is of the view that it would be better to first make daughters coparceners like sons so that they would be entitled to and get their shares on partition or on the death of the male coparcener and hold thereafter as tenants in common. We recommend accordingly.

Consequently, as above indicated, we have recommended a combination of the Andhra and Kerala Models. We are of the view that this synthesis is in keeping with justice, equity and family harmony.

Under the Amending Acts the eldest daughter like a son will be entitled to be a Karta of the Joint Family, and will by virtue of that position exercise the right to spend the income for joint family purposes and alienate the joint family properties for legal necessity or benefit of the estate. However, under the Shastric Law, a daughter on marriage ceases to be a member of the parental family, but the Amending Acts have changed her position, which is quite alien to Hindu patriarchal notions. Though her position as defacto manager was recognized when mothers acted as guardians of their minor sons after the death of their husbands, the dejure conferment of the right eluded her.

CONCLUSION

We have been guaranteed right to equality under our constitution but looking on to the Hindu succession act 1956 it cannot be said so. But with the fact that the states like Kerala, Andhra Pradesh, Karnataka have thought about it in detail and led to drastic changes with this respect. The effect of these legislations would be that women would now be more empowered with respect to their rights. And from these amendments evil hazards like dowry would not be found in the society. Earlier females were not considered to be Karta of family. But still Nagpur high court maintained this distinction.

The Kerala Act and the amendments to the Hindu Succession Act by Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka, have all been hailed as progressive in their own way. But these can create situations of conflict of laws, since laws in the States in India relating to Mitakshara coparcenary property differ. Resolution of these situations of conflict and formulation of rules by the courts would take some time. Hence there is urgent need for:

(1) Having one law relating to Mitakshara coparcenary throughout India; or

(2) Clear definition of applicability of the State laws/amendments; or

(3) Immediate enactment of rules of conflict of laws for resolving conflicts.

Thus the proposed amendments will bring a very positive change in the society.

[1] Paras Diwan, Family Law, Allahabad Law Agency, 6^th edition

[2] Mayne’s Hindu Law & Usage 728 (13th A. Kuppuswami Ed. 1991)