Académique Documents
Professionnel Documents
Culture Documents
INTRODUCTION
I.
a long history of discrimination and subjugation leaving behind the age old tradition
of domestic confinement, gender inequality still persists in the private sphere, the
home1. Women in fact constitute half of the worlds population and work two-third
of the worlds working hours, but she earns just one-tenth of the worlds income 2.
This statistics itself reveals the injustice meted out by women all over the world
despite numerous legislations ensuring equality, prohibiting discrimination on the
basis of sex, religion, race, caste and place of birth3. Gender injustice is highly glaring
in the matter of womens property right all across the globe. This is because their
property rights are limited by custom, social norms, legislations which hamper their
economic status, opportunities and dignified life in the home.
Ownership of land and other property empowers women and provides
income, security and status. Without resources such as land, women have limited say
in house-hold decision making and no assets during crisis4. Similarly women who
1
2
Dr. Jitendra Mishra, Right to equality and Gender Justice, 91 AIR 485 (2004).
UN Human Development Report 1995,available at: http://www.hdr.undp.org(Accessed on 20 .9.
2011)
For instance, The Constitution of India under Article 14 guarantees equality before law and equal
protection of Laws. Article 15(1) prohibits discrimination on the basis of sex, race, caste, religion
and place of birth. Almost all Constitutions of the world guarantee similar protection.
Womens land and property rights. UN women-United Nations Entity for Gender Equality and the
Empowerment of women. The UN General Assembly on July 2, 2010 voted unanimously to create
a UN Entity for Gender Equality and the Empowerment of women named UN Women (UNW).
The new entity is meant to accelerate progress in meeting the needs of women and girls worldwide
and to end discriminatory disparity.
own property are better positioned to improve their lives. By owning their own home
and land women directly gain from benefits like use of land, higher incomes and a
secure place to live. Moreover economic independence ensures personality
development which would make her confident, free and secure 5. Further Womens
ownership of property would also improve child nutritional status, higher education
for girls and other positive impacts6.
As per the 2011 census, sex ratio among children (0 6 years) became
shockingly very low. It has declined to 914 female children for every 1000 male. It
was 927 during the previous census. This shows that boys are continued to be
preferred and daughters remain unwanted.7 The reduction in girl population is not
because of the natural population divide but it is arrived due to anti-girl-child gender
bias. Generally gender inequality is a burden on societies. Hence the modern societies
adopt heinous practices like female foeticide, female infanticide, sex deduction tests
etc. Daughters are viewed as a liability8. All these social issues are centered on the
problem of lack of property rights to women. If women have ownership of property,
they would no longer become a burden in the family because their status is also equal
to that of sons in the matter of property rights. On the other hand if property rights are
not given to women, their status will be lowered and it would lead to the subjugation
and subordinate status of women9.
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7
8
9
10
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12
13
14
The Platform for Action is an agenda for womens empowerment. The Conference was held in
Beijing, China in 1995.It included Action for Equality, Development and Peace,available
at:www.un.org (Accessed on 3.9.2011)
It defines what constitutes discrimination against women and sets up an agenda for national action
to end such discrimination.
Un,Millenium Development Goals-3,available at: www.un.org/millennium development
goals(Accessed on 18.2 2011)
United Nations Development Fund for Women,s available at www.unifem.org.in ( Accessed on
3.5.2011)
UN Special Rapporteur focuses on the question of women and adequate housing,available at
http:// www.un.org.(Accessed on 5.9.2011)
women in general are far less secure than men. Very few women own land. A
separated or divorced woman with no land and a family to care for often lands up in
an urban slum, where there is no security for her15.
Womens equal rights to access, own and control land, housing and property
are thus firmly recognized at international level16. However at national level
persistence of discriminatory personal laws, policies, patriarchal customs, traditions
and attitudes are still blocking women from enjoying their rights. In the matter of
property rights legally male dominates the society. There are numerous provisions
under the Constitution of India which ensures that there shall be no discrimination
between sexes17, but in reality none are effective enough to bring about a revolution, a
radical change in the society.
What is guaranteed under Article 25 is the freedom to follow any religion and
this freedom does not encompass any additional right to compel a particular
community to impose its tenets on the believers. The Church through its Cannon law
has been influencing the Christians all over the world ever since its inception
advocating womens subjugation dependence and obedience to the husbands. In order
to achieve this it is essential to curtail their freedom through the denial of economic
independence. Same is the case of other communities like Hindus and Muslims.
Manus code had been imposed on them to keep the Hindu women subjugated. The
15
16
17
Ibid.
The Habitat Agenda, Millennium Development Goals, various Resolutions of the UN Commission
on Human Rights entrust the UN-HABITAT to initiate efforts to improve womens land, housing
and property rights, available at: http://www.unhabitat.org (Accessed on 28.11.10.)
Article 14 States shall not deny to any person equality before law and equal protection of laws
within the territory of India; Article 15 prohibits discrimination on ground of religion, race, caste,
sex or place of birth; Article 15(3) guarantees special provisions for the protection of weaker
sections; Article 25: All persons are equally entitled to freedom of conscience, enjoy the
right freely profess, practice and propagate religion. See for further details V.N.Shukla,
Constitution of India, 95(11 th edn.,Eastern Book Company Lucknow2011)
Muslim women undergo discrimination despite the glorified status given to them in
the Quran .To make matters worse the State continue the non interference policy of
the Colonial masters except in the case of Hindu women .They are given property
rights through codification of their religion based personal laws.
No mention of the property rights of women would be complete without
some reference to a womens right to own her name. It has long been the custom for a
married woman to take the name of her husband upon marriage. This was a custom
prevailed in England under the doctrine of Coverture18 in common law. It was the
custom in England that the husband would become the guardian of the wife upon
marriage. Her property rights become his. Under law they become one but the one
was the husband. As a result, it became the custom for the two of them to be known
by one name.. That of husband.19 We in India still follow the common law
doctrine of coverture and follow the same rule.
II.
stated that in India subjection was cardinal principle. Manu says that day and night
women must be held by their protectors in a state of dependence. The rule of
inheritance was agnatic that is descent traced through males to the exclusion of
18
19
females. 20However ancient Scriptures gave women an honoured and respected status.
Veda Vyasas Mahabharata attribute the fall of Pandavas to the
humiliation meted
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21
22
23
24
25
familial status of daughters was fairly satisfactory during the Rig Vedic period. The
Veda further provided that parents should gift their daughter intellectuality and power
of knowledge when she leaves for her husbands home and they should give her a
dowry of knowledge. It is further stated that the right is equal in fathers property for
both son and daughter26. Manusmriti also said that women are worthy of worship. The
gods reside in those households where women are worshipped27. It is again stated
that they were educated like boys and had to pass through a period of Bramacharya 28.
The marriage was considered essentially a union of two persons of full development.
During the Rig Vedic times, daughters did not have any right to hold, acquire
or dispose of property since she was not accorded legal status. But the daughter living
in her fathers house throughout her life got a share of his property29. But she could
not claim any share with her brothers since it is laid down in Rig Veda that a son born
of the body does not transfer wealth to sister30. Married daughters living with their
husbands could inherit from their father only when they had no brother31. But the
position of the wife was fairly satisfactory. She enjoyed absolute equality with men in
the eye of religion. Her social status was not only of a loving wife but also of a loving
mother. She was described by Vedic sages as an ornament of the home32. Despite
this exalted status, the wife did not have any legal status during the Vedic period and
hence she could neither hold nor inherit property. It was believed that the landed
property could be owned by one who had the power to defend it against rivals and
enemies. The wife was obviously unable to do that so she could not hold any property
and during this period widow could marry again. She need not give up her ornaments
26
27
28
29
30
31
32
and shave her head. The people practiced polygamy. It was generally prevalent among
aristocratic classes. Dowry system was common in rich and royal families, but only in
the form of movable gifts.
In the post Vedic period from 1500 BC to 500 AD, the exalted status of
women suffered a setback due to the various restrictions put on womens rights and
privileges by Manu. Manus code depicted changed status of women which is
characterized as obedience to her husband is the beginning, the middle and the end of
female duty33. Manu and other Smritikars insisted for the perpetual dependence of
women34. Yajnavalkya declared that women should follow the words of her husband,
this is their highest duty35. Manu further emphasized that a womans father protects
her in childhood, the husband in youth and her sons protect in old age, a woman is
never fit for independence36. The social or familial status of daughter was also
towards deterioration during this period. The age of marriage was lowered and it was
recommended that the girls should be married before they attained puberty37.
Her proprietary right has also not improved much. The daughters like sons
did not have right by birth in the joint family property. As a rule female could not be
coparceners in the coparcenery. However, she was given a right in the separate
property of her father. So she was not altogether ignored as is clear from the slokas of
various sages. Manu said that as is self, so is a son and a daughter is equal to son, how
they, when ones self is living in a form of ones daughter, can anyone else take the
wealth38. Brihaspathi also stated that the wife is declared to be the inheritor of the
husbands wealth and, in default of her, the daughter, the daughter, like a son springs
33
34
35
36
37
38
Dr.S.R.Myneni, Women and Law, 4B (2nd edn., Asia Law House, Hyderabad,2008)
Dr.R.Revathi, Law Relating to Domestic Violence 1 (2nd edn., Asia Law House, Hyderabad,2009)
Yajnavalkya Smrithi: 1:18.
Manu Smrithi, V.148.
Gauthama Samhita, 11.9.24.
Manu IX, 100.
from the limb of man, how any other man can inherit her fathers property while she
lives39.
It can be concluded from the slokas that even with respect to the separate
property of the father, the daughters right to succeed to that property was restricted
and limited. She could succeed only in default of a son, grandson, great grandson and
a widow40. But Smriti writers were of the opinion that she could get to the extent of
one-fourth share of what she should have had, had she been a son. So Manu said that
to the maiden (sister), the brothers shall severally give (portion) out of their share,
each out of his share, one-fourth part, those who refuse to give (it) will become out
castes41. Similarly Yajnavalkya laid down that sisters should be disposed of in
marriage giving them as an allotment the fourth share42. This fourth share is in fact
reserved for marriage expenses and it was not a share of the daughter.
With respect to the wifes legal status it was generally thought that she had
no proprietary rights. This is because the ancient society was feudal and patriarchal.
The Scriptures and Dharma Sastras perpetuated this patriarchal system which insisted
for womens implicit obedience and subordination43. The reason behind such an
attitude was that wife has no separate entity of her own apart from the husband. They
are considered to be one in the eye of law. Hence, wife is not entitled to separate
ownership. Further during the life time of her husband she has only the right for
residence and maintenance44.
39
40
41
42
43
44
10
compelled to take purdah50. The purdah restricted the movement of women outside
home and they were deprived of education and women were made more and more
dependent on men51.The Scriptures also propagated the idea that women were unfit
for freedom and deserved no independence. They should be kept under the authority
of men in all stages of life. The custom of child marriage and the inhuman practice of
Sati became a part of the social culture along with religious ban on widow remarriage52. Due to the prevalence of the custom of child marriage during the Mughal
Period, the Hindu daughters were married at a tender age of nine or ten and in some
cases they were married even before they learn to talk. During the British period, the
attitude, behavior and living pattern of Hindu Society changed and reached the
maximum degree of deterioration. The worst aspect of their social degradation was
the terrible sufferings and social falling of women who even engaged the attention of
almost all social reformers. Women were not given equal matrimonial right to
property, rights to widows to remarriage adoption and divorce rights53.
2. Pre- Constitutional Period
During the British period, the attitude, behavior and living pattern of Hindu
Society changed and reached the maximum degree of deterioration. The worst aspect
of their social degradation was the terrible sufferings and social falling of women
50
11
which even engaged the attention of almost all social reformers54. Thus the plight of
women became the focal point for social reformation.
serious efforts were made by social reformers like Rajaram Mohan Roy for
eradication of social evils and making people sensitive to injustices perpetrated to
women55. Flood gates were open to social reforms during this period56. The reform
movement successfully eradicated some of the deep rooted evils like Sati57. A good
number of social legislations like Widow Remarriage Act 1856, The Child Marriage
Restraint Act 1929 were enacted to improve the status of women.
3. The Post Constitutional Period
Independence brought about a sea change in the country and the framers of
the Indian Constitution gave priority to womens equal rights. The Constitution
enshrined the equality principle and guaranteed that all are equal before law
irrespective of their religion, race, caste, sex or place of birth. This was the greatest
honour paid to the once neglected and subjugated section of the society58. The
fundamental rights couched in Articles 14, 15 and 16 of the Constitution guarantee
that women in India shall be treated equally on par with men. Article 15(3) empowers
State to take affirmative action through protective discrimination in order to undo the
past sufferings and subordination underwent by the women of India from time
immemorial59. Further the Directive Principles of State Policy60 obligates the State to
54
55
56
57
58
59
Kiran Devandra, Status and Position of Women in India, 3,( Vikas Publishing House Pvt.
Ltd.1997)
See supra note 21 at 37
See supra note 51
Manmohan Kaur, Role of women in the Freedom movement 4 (1857-1947), (1968) NewDelhi,
Sterling publishers 1968)
Shruti Pandey,``Property Rights of Indian Women, available at:www. mulimpersonallaw. com
(Accessed on 8.4.2011)
See supra .note 54 at 3
12
provide equal rights for men and women, adequate means of livelihood and equal pay
for equal work61. The principle of right to live with dignity has been incorporated in
the Preamble, 62 fundamental rights and the Directive principles of State policy of the
Constitution.
After conferring equality in the Constitution, immediate steps were
taken to reform and codify Hindu Law. Thus the Hindu Marriage Act, 1955, the
Hindu Succession Act 1956, the Hindu Adoptions and Maintenance Act 1956 and the
Hindu Minority and Guardianship Act 1956 were passed in order to wipe out the
discriminatory customs and to bring about a change in the status and position of
Hindu Women. Equal status was conferred on them on par with men in the
matrimonial home also. The Hindu Succession Act 1956 gave the woman the same
rights in the matter of succession as a man thereby making a material change in her
ability to inherit and alienate property. Daughter, Wife and Mother have been brought
under Class I heirs. Women have been made absolute owners of the property
whether it was acquired before or after the commencement of the Act 63.
Even after independence and the commencement of the Constitution, the
Property rights of Indian women as elsewhere are too unequal and unfair. The Hindu
women were not given inheritance rights in the joint Hindu Family property. Only
male members were entitled to coparcener status. Hence Indian women still continue
to get fewer rights in property than the men both in terms of quality and quantity.
There is a slight difference in the property rights of Indian women based on religion.
60
61
62
63
13
The peculiarity is that along with many other personal rights, in the matter of property
rights too the Indian women are highly divided within themselves. Even today India
has failed to bring a uniform civil code as envisaged under Article 44 of the
Constitution. It is to be submitted that in India there is uniformity in one aspect, that
is Indian men are controllers of most of the property and resources in India.
In the absence of a uniform civil code, every religious community continues
to be governed by its respective personal laws64 in several matters and property rights
is one of them. In fact, even within the different religious groups, there are sub-groups
and local customs and norms with their respective property rights. Thus Hindus,
Sikhs, Buddhists and Jains are governed by one code of property rights which is
codified in 1956. Christians governed by one code, The Indian Succession Act 1925.
However certain groups like Garos are excluded from the purview of the Act.
Muslims have not codified their property rights.
To make matters worse, the Constitution permits Central and State
Governments to enact laws on matters of succession and hence the States can enact
their own variations of property laws within each personal law. It is worth mentioning
the amendments made by five southern States in India, 65 namely Kerala, Andhra
Pradesh, Tamilnadu, Maharashtra and Karnataka. As per the law of these States
except Kerala, in a joint 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
64
65
For example, The Travancore Christian Succession Act 1916 and the Cochin Christian Succession
Act 1921 of Kerala.
The Kerala Joint Family System (Abolition) Act 1976, The Hindu Succession (Andhra Pradesh
Amendment) Act, 1986, The Hindu Succession (The Tamilnadu Amendment) Act 1989, The
Hindu Succession (Karnataka Amendment) Act 1994, The Hindu Succession (Maharashtra
Amendment) Act 1994.
14
the son. However Kerala has gone one step further and has abolished the right to
claim any interest in any property of an ancestor during his or her lifetime based on
the mere fact that he or she was born in the family.
The Hindu Succession (Amendment) Act 2005 struck at the root of the
patriarchy. It crushed the exclusive citadel of male coparcenary in order to give effect
to the principle of equality enshrined in the preamble and Part III of the Indian
Constitution. The gender discrimination in the Mitakshara coparcenary has been
completely wiped off by raising the status of female members of the Hindu Joint
Family equal to that of the male coparceners66. Male and Female heiress acquired
birth right equally67 in addition to the right to inherit equally the property of the
intestate father if the dead father had not willed away his property while he was alive.
The discrimination between married and unmarried daughters has been removed68
now married Hindu women can also ask for partition of the dwelling house69.
Till 1986, the Indian Courts also in general, barring few exceptions, had
been reluctant to test the personal laws on the touchstone of Constitution and to strike
down those that are clearly unconstitutional. They just left it to the wisdom of
legislature and direct them to take immediate steps to frame uniform civil code as per
66
67
68
69
Section 6 of the 1956 Act was amended in 2005 to remove the gender discrimination, women are
getting birth right in the ancestral property.
Section.6 of the Hindu Succession (Amendment) Act 2005.
Bina Agarwal, ``Landmark steps to gender equality.`` The Hindu, Sunday September 25, 2005.
Section 6 of The Hindu Succession (Amendment) Act 2005 included married daughters as
coparceners in the Joint Family Property, thereby removing the discrimination between married and
unmarried daughters.
Section 23 of The Hindu Succession Act 1956 disentitled a Hindu woman to ask for partition in
respect of a dwelling house wholly occupied by a Joint Family until all the male heirs choose to
divide their respective shares. The Law Commission in its 174th report recommended for daughters
full right of residence in their parental home. Consequently section 23 of 1956 Act was deleted by
the 2005 Amendment Act. Hence the last remains of discrimination against women was removed.
15
the mandate under Article 44 of the Constitution70. However after1986, we see a bold
Judiciary delivering gender friendly judgments.
III. Significance of the Study
Discrimination against women in the matter of inheritance has been an issue
because of the religion based personal laws despite the guarantee of equal status under
Article 14 of the Constitution. The Indian Constitution has not dealt the problem of
separate personal laws following different inheritance laws. The Succession laws of a
family make the family members economically independent. However in practice
women are often ignored when it comes to property matters.71 Consequently women
are deprived the Constitutional protection of Equality of Status. In the matter of
succession alone plurality of provisions exists. There is one testamentary rule for
Hindus and Christians. The Indian Succession Act under Section 57 confers absolute
testamentary capacity to the testator; whereas the Muslim personal law restricts the
testamentary capacity to 1/3 of its property72.
The Constitution and hence the Judiciary followed the colonial policy of
non-interference in the personal laws of communities except in the case of Hindus.
The Supreme Court immediately after independence was reluctant to interfere in the
personal laws. This was reflected in the landmark decision of Chief Justice Chagla
and Js.Gajendra Gadkar in Narasu Appa Mali73. In Krishna Singh v. Madhura Ahir74
the Supreme Court even rejected the applicability of Part III to personal laws75.
70
71
72
73
Article 44 requires the State to secure for the citizens a Uniform Civil Code throughout the
territory of India.
Mrs.Indira Nair, Discrimination against women, Central Law Quarterly, Vol. IX:11,208,(1996).
Vinay Reddy, Women and Succession Laws in India, A Critical Analysis, Vol. 26, issue
No.192, 19-28, Indian Socio Legal Journal( 2000)
AIR 1952 Bom 84.
16
74
75
76
77
78
17
that the male heirs shall be entitled to have the whole of the intestates property
divided equally among themselves subject to the claims of the daughter for
streedhanam. The streedhanam due to a daughter shall be fixed at the value of the
share of a son or Rs.5000/- whichever is less. Female heirs who were paid
streedhanam are left out of consideration. Again Section 29 stated that the female
heirs will be entitled to share in the intestates property only in the absence of male
heirs. It is to be noted that certain Christian Communities were exempted from this
provision.79
Meanwhile the Indian Succession Act 1925 was enacted for governing the
Succession matters of Indian Christians. However this Act was not extended to
Travancore because of the saving clause contained under Section 29 of the said Act.
However for the Christians in Malabar the 1925 Act was applied because Malabar
was in the Madras presidency during the British rule. The 1925 Act has become
outdated and antique. Section 37 of the Act provides for equal distribution of the
intestates property among the children after deducting the 1/3 share of the widow.
The Patriarchal Christian community opposed the introduction of 1925 Act because of
the above provisions under Section 37. Hence the Travancore Christian Succession
Act 1916 continued to be in force even after the commencement of the Constitution
until these discriminatory provisions were challenged by Mrs. Mary Roy in Mary Roy
v. State of Kerala80.
In Mary Roy the Court held that Part B States (Laws) Act 195181 excluded
the operation of the Travancore Christian Succession Act 1916. Hence the court
79
80
81
The Latin Christians living in Karunagappally, Quilon, Chirainkil, Neyyattinkara are governed by
their customary laws.
(1986) 2 SCC 204.
Section 6 repeals and savings provides for repealing the corresponding Acts and ordinances in
force in Part B States.
18
declared that the Travancore Christian and Cochin Christian Succession Acts stood
repealed because of the extension of the Indian Succession Act 1925. It is pertinent to
note in this context that the Supreme Court hesitated to declare the discriminatory
Sections82 as unconstitutional. Even though the 1916 Act is repealed, the system of
giving dowry to Christian women continued because the Patriarchal community was
not willing to confer inheritance rights to the Christian women. Ever since Mary Roy
verdict, the tendency to write wills also steadily increased. The father can will away
his property to the son/sons. The daughter/daughters are excluded from testament on
the ground that they were given their share in the form of amount at the time of
marriage.
The Indian Succession Act 1925 grants absolute testamentary capacity to the
testator so that he can disinherit daughters. The same Act under section 37 provides
for equal distribution of the intestate property if the father dies intestate. Further a
Christian father can also partition his property. He can partition the property among
son/sons excluding daughter/daughters on the ground that they were given stridhanam
as their share. Above all to circumvent section 37, the Patriarchal community adopted
the innovative device of getting release deeds from the daughters at the time of
marriage. The daughters sign the release deeds without fully knowing its serious
consequences that they are relinquishing their inheritance rights in the natal family
forever. Moreover, the stridhanam given to the daughter is to be handed over to the
husband or father-in-law at the time of marriage. The wife is not entitled to own
property or assets. The community always wants to deprive the women of economic
independence. They should remain obedient, subjugated and subordinate in the
82
Sections 24, 28, 29 of the Travancore Christian Succession Act 1916.These discriminatory
sections were challenged in Mary Roy.
19
matrimonial home. Even the share allotted to the widow will be administered by the
son because as per Manus dictates a woman never deserves financial freedom.
It is pertinent to note here the impact of Mary Roy case which paved the way
for the Indian Succession (Amendment) Act 2002, as per the recommendation of the
Law Commission of India in its 209th report.83 Taking inspiration from the Mary Roy
verdict, the Law Commission of India, the members of Parliament belonging to
Christian Community, Kerala Womens Commission and other NGOs made
representations to the Government for the deletion of explanation to section 32 and
section 213 of the Indian Succession Act 1925. The Act has excluded a Christian
widow from her distributive share on the basis of the contract made at the time of
marriage84.
The Indian Succession (Amendment) Act 2002 amended section 32
(devolution of such property) and section 213 (right of executor or legatee when
established) of the Indian Succession Act 1925. Explanation to Section 32 was
omitted thereby relieving a Christian widow from the bar to succeed to the
distributive share of her husbands estate even if there was a valid contract made to
that effect before her marriage. Again the Amendment Act 2002 made Section 213
inapplicable to Indian Christians85. Explanation to Section 32 (of the Parent Act)
provided that a widow is not entitled to the provision hereby made for her if, by a
valid contract made before her marriage she has been excluded from her distributive
83
84
85
Law Commission of India, 209 th Report on proposal for omission of section 213 from the Indian
Succession Act 1925,2002
This section is a reflection of an English rule that a widows title under the Statute of Distributions
may be barred by a settlement before marriage. See Dr. Sebastian Champappilly, Christian Law
of Succession in India,79,( Southern Law publishers Cochin,1997)
State of Kerala had amended section 213 of the 1925 Act in 1996. Section 2 of the Indian
Succession (Kerala Amendment) Act, 1996 provides: In sub-section (2) of section 213 of the
Indian Succession Act 1925, after the word Muhammadans the words `or Indian Christians shall
be inserted. It obtained Presidents assent on 8.3.1997.
20
share of her husbands estate. Except these two amendments no other changes have
been made in this outdated Act.
The plight of Christian women is pitiable when compared to Hindu women.
The Hindu womens right to property was recognized under Section 14 of the Hindu
Succession Act 1956. The 1956 Act was again amended in 2005 to confer birth right
to Hindu women belonging to Hindu Mitakshara Joint family. The Act also removed
the discrimination between married and unmarried women. The Christian women in
fact undergo double discrimination because the State amendments to the 1956 Act
conferred coparcenary status to Hindu women in the Southern States and
Maharashtra86. So Hindu women have been conferred gender equality in the matter of
inheritance at least on paper. With respect to Muslim women the Quran assures them
a share in the parental property when the father dies intestate.
In spite of these unfortunate situations, Christian woman rarely goes to court
claiming her share. She values more her ties with natal family than she gets from
them. She gives priority to the emotional attachment to the natal family. This is
because she thinks that the natal family is her last resort to come back in case her
marriage breaks down. Here also she is forced to live there as a destitute. There is no
law to provide her right to residence as in the case of Hindu women. Her life in the
matrimonial home also becomes undignified because whatever stridhanam she has
brought would be appropriated by husband and in-laws because there is no law to
protect her assets with her.
86
The Kerala Joint Family system (Abolition) Act 1976, The Hindu Succession (A.P.Amendment)
Act 1986, the Hindu Succession (The Tamilnadu amendment) Act 1989, The Hindu Succession
(Karnataka Amendment) Act 1994, the Hindu Succession (Maharashtra Amendment) Act 1994.
21
property. She recommended for the abolition of section 15 and 16 of the Indian
Succession Act 1925 which link womens domicile with that of the husband. The
legal reforms so far have not been adequate to give all Indian Women a right to
property on the same terms as men. Even where law has given a right, conventions
and practices do not recognize them. Women or daughters, wives, daughters-in-law,
mothers or sisters tend to lose out and often suffer deprivation. Therefore she called
for a social reform movement for creating awareness and change in mind set.
Dr.Sebastian Champapilly (1997) in his book Christian Law of Succession in
India (Southern Law Publishers. Cochin) made an earnest attempt to include all the
State and National law regarding Christian Succession. He traced the origin and
development of Christian Law of Succession in British India in the first chapter. After
the conversion of Hindus to Christianity, the converted Christians were following the
customs and traditions of Hindus. So the Portuguese and then the British tried to bring
in the Western concepts of law to be applied to the Christians in India. He also
included the State Succession Laws for Kerala converted Christians, the Travancore
Christian Succession Law (1916) and the Cochin Christian Succession Law (1921).
Later the Indian Succession Act 1925 was enacted for regulating the inheritance of
Christians all over India except Travancore and Cochin. A separate chapter has been
set apart for the Landmark case Mary Roy v. State of Kerala (1986) 2 SCC 209 where
the Supreme Court declared unconstitutional the discriminatory provisions in the
Travancore Christian Succession Law (1916).
On legal bondage, womens struggle for Justice (1985) published by
WINA India (WINA was started by a group of women) contains articles by Stella
Faria, Annie Thayil, Anna Alexander and Aruna Gananadason. Stella Faria criticizes
the archaic, western oriented, Patriarchal anti female Christian law. The experiences
24
of Christian women show that they reel under the pressures of injustice and inequality
perpetuated by the first century male dominated culture.
Annie Thayil also attacks the patriarchal system still being practiced in
Christian families. The father being the head of the house is the sole proprietor of the
family property and therefore he can will, gift or dispose of it as he deems fit. The
question of the rights of family members arises only if he dies intestate. Sons and
daughters are born to the same parents. Then why should there be a difference in their
rights to property of their parents? The bias against women is so strong in the present
family structure which is determined to keep women powerless and dependent on
men. Middle class families will happily spend lakhs of rupees and give lavish dowries
on marriage of daughters, but will not give even a small portion of all that money to
their daughter in her own name, under her independent control in the form of land or
other income generating property. In the present family system women are mainly
used as commodities, as vehicles for transfer of consumer forms of property from one
family to another. In fact control over women, as over slaves is passed from one
owner, the parents family to the other, the husbands family. Women seldom acquire
any real control over even what is customarily supposed to be theirs.
Bina Agarwal, Professor of Economics, Delhi University in her article
Marital violence, Human Development and womens property status in India
(Written with Pradeep Panda Cambridge University Press.1994) concludes that
womens ability to own and inherit land acts as a deterrent against marital violence.
A field of ones own is her famous work where she again stresses the importance of
land, inheritance and ownership in India arguing that the single most important factor
affecting womens situation is the gender gap in command over property. In another
25
article Home and the world: Revisiting violence, Agarwal and Panda charge India
with dealing marital violence and suggest reformation of land ownership and
inheritance laws. The Government of India spurred on by Agarwals work passed the
Hindu Succession (Amendment) Act 2005.
Law and gender inequality by Flavia Agnes (1998), Oxford University Press)
is a study mapping the issue of gender and law reform which could safeguard
womens rights. She traces the origin and development of family law in India since
colonial rule and calls for reformulation of religious personal laws to accord gender
equality. Her focus is on eradication of gender inequality from the family laws of all
religious communities.
Js.S.Rajendra Babu in his lecture on `Gender Justice Indian Perspective
(2002) 5 SCC J-1) laments that in spite of 50 years of post independent
democratization, preferential rights in the Constitution and legislative enactments are
still stuck in the century old mould. The major reason for this status quo is the
patriarchal system where women themselves collaborate. They are getting entangled
in the primary role of home makers. He finds fault with the women folk for acquiesce
to the role of home maker. Hence he calls women to come out of the shell of feminity
and assume a more activist role of promoters of social transformation that can alter
the lives of both women and men.
Sindhu Thulasidharan in her project Christian Women and Property Rights
in Kerala Gender Equality in Practice (2004) also looks into the property rights of
Christian women in Kerala. Her study revealed that denial of equal rights to property
continues among all sections of Christian community. The successive legislative
reforms introduced to achieve full equality have not so far advocated gender equality.
26
several ways discriminatory and arbitrary. The courts are also reluctant to test the
personal laws on the touchstone of Constitution and to strike down these laws which
are clearly unconstitutional.
Flavia Agnes in her article Constitutional challenges and communal hues
(Combat law, vol.7, issue 6, Nov-Dec.2008) challenges the discriminatory personal
laws. The essay explores the complex terrain of gender justice and legal pluralism.
She argues that enactment of a special Code Bill to codify Hindu personal laws
violated the principle of equality and non-discrimination under Article 14 and 15 of
the Constitution. She also attacks the Hindu males right to will away the separate
property. She also analyses the approach of the Courts towards personal laws. She
quotes the observation of Delhi High Court (Harvinder Kaur Vs. Harminder Singh,
AIR 1984, Del 66) Introduction of Constitutional law in the home is most
inappropriate. It is like pushing a bull into a china shop. It will prove to be a ruthless
destroyer of the marriage institution and all it stands for. In the privacy of the home
and married life, neither Article 21 nor Article 14 has any place.
Dr.Susan Mathew also was awarded her doctoral degree in 2010 for her
thesis titled Inheritance Rights of Syrian Christian women: A study in Kerala. It is a
sociological study on the inheritance Rights of Syrian Christian women. In her
introductory chapter she deals with the existing practice of denying property rights to
women especially Christian women due to the deep rooted patriarchal ideologies. She
has brought to light the privileges enjoyed by women in matrilineal system, where the
succession of property is through mother. Her thesis consists of eleven chapters. In
the subsequent chapters she deals with theoretical perspectives along with review of
literature on inheritance and dowry related matters, origin of Christianity and the
inheritance rights of Christians in Kerala. In the remaining chapters she discussed
29
ii.
The studies have also looked into the amendments made in the Hindu
Succession laws to confer birth right to Hindu women in the joint
family property. So there is discrimination on the basis of religion
because no effort has been made to improve the status of either
Christian or Muslim women.
iii.
Patriarchal studies have also looked into the aspect of giving dowry in
the form of gold or cash and the reluctance of parents to give
property or cash in the name of the daughter. The cash or gold will be
absorbed into the husbands family and the daughter cannot claim it as
her own money.
iv.
The studies have also made inroads into the Indian Succession Act
1925 which was enacted during the colonial rule. The father/husband
can will, gift or dispose of his property in whatever way he wants. That
means he can even disinherit the children or spouse. The absolute
testamentary power is a western legacy.
v.
The studies also reveal that the Christian women would hardly go to
Court to file cases against family members. The only woman who
challenged the Travancore Christian Succession Act 1916 was Mary
Roy from Kottayam District of Kerala in the year 1986. Therefore the
case regarding property disputes between Christian women and her
family members are very rare.
With these issues unfolding in the review of literature in the form of books,
articles, seminar papers, the present study seeks to examine the under mentioned
objectives.
No comparative study has ever been made in the status of Christian, Hindu
and Muslim in their respective personal laws. Their status is totally different because
of the unequal provisions in the customary personal laws. Moreover no empirical
study has been made regarding the property rights of the elite Catholic families in
Kottayam District and Kannyakumari District in Kerala and Tamilnadu respectively.
It is pertinent to quote here the opinion of Indira Jaising 87 on the Bill for the Hindu
87
31
Succession Amendment (2004). She came down heavily by saying that Do we need
reform for Hindu women or for women generally.
A review of the existing literature on Christian womens right to property
reveals that a comparative study of the property rights of women under the personal
laws in the light of the Hindu Succession (Amendment) Act 2005 has not been made
so far. Hence the researcher felt it necessary to make a thorough analysis of the
property rights of Christian women comparing it with that of Hindu and Muslim
women. Hence the researcher has selected this topic. It becomes more prominent in
the light of the Government of Indias formulation of the National Policy for the
Empowerment of Women 2001. Hence it will be appropriate to make a critical
appraisal of the inheritance rights of Christian women in their respective personal
laws. The present research is directed towards this end.
V Concept of Gender Injustice in the Matter of Inheritance Rights
Gender Justice means that no one be denied justice or discriminated only
because of ones gender (sex)88. Gender injustice refers also to the obvious or hidden
disparities among individuals based on the performance of gender89. This problem in
simple terms is known as Gender Bias which simply means gender stratification or
making difference between a girl and a boy, i.e., male or female. In making biasness
among gender India has 10th rank out of 128 countries all over the world, because
88
89
Jyoti Rattan,`` Uniform Civil code in India: A binding obligation under International and Domestic
Law ILI Vol, 46, 578( 2004)
Anne Mary Mooney Cotter, Gender Injustice: An international Comparative analysis of Equality
in Employment, (Ashgate Publishing House England, 2004)
32
since long back women were considered as an oppressed section of the society and
they were neglected for centuries90.
Family relations in India are governed by personal laws that reflect glaring
gender inequalities and discrimination against women. Hindus, Muslims, Parsis and
Christians have their own personal laws. In all these personal laws except Hindus,
women have fewer rights in matters of marriage, divorce, adoption, guardianship and
succession than men in similar situations. So the women of the minority communities
continue to have unequal legal rights. Besides that women are kept under
subordination through the powerful instrument of religious traditions and customs
which are perpetuated through these personal laws91. The Government of India has
chosen to ignore these discriminatory practices under the guise of personal laws
.However influenced by the work of CEDAW the Government of India has finally
declared that it would make an effort to regulate gender-biased customary practices in
conformity and with its policy of non-interference in the personal affairs of any
Community without its consent 92. As far as Christian women are concerned the
Church and the Community are highly patriarchal. The Church through its Canon
Laws are propagating subjugation of women with the tacit support of the patriarchal
Community. It is pertinent to note that even the Church actively participated in the
propaganda against Mary Roy Verdict.
1 Types of Gender Inequalities
There are many types of gender inequality between men and women. Gender
inequality can take different forms. This issue has been publicly reverberating through
90
91
92
Ibid.
Uma Chakravarti, Conceptualising Brahmanical Patriarchal Early India Vol 28, No.14,
Economic and Political Weekly,579-585( April 3 1993)
Kirti Singh ,Obstacles to Womens rights in India, 160,(Martinus Nijhoff Publishers2008)
33
society for decades. Dr.Amartya Sen93 has classified gender inequality in the
following way
(a)
Natality Inequality
In this type of inequality a preference is given for boys over girls. Gender
inequality can manifest in the form of parents wanting the newborn to be a boy rather
than a girl. Due to the availability of modern techniques to determine the gender of
the fetus, sex selective abortion has become more common in South Asia, India and
China94.
(b)
Ownership Inequality
Household Inequality
Gender inequities are very common within the family or household. The
family arrangements are quite unequal when it comes to sharing the burden of house
93
94
95
Amartya Sen, Many faces of Gender Inequality,The Frontline, Vol. 18-Issue 22,Oct 27,( 2001)
Ibid.
Ibid
34
work and childcare. Men naturally work outside the home. Women can take up
outside jobs if she can manage her routine unavoidable, household duties.
Consequently there will be unequal relations within the family and lack of recognition
outside the world96.
(e)
96
97
98
99
Ibid.
Genesis 1:26.
Ibid.
Cor:11:7,9.
35
marriage ceremonies, the Priests quote: Therefore as the church is subject into Christ,
so let the wives are to their own husbands in everything 100.
(a)
Origin of Patriarchy
All the studies to trace the origin and development of discrimination against
women end with the finding that it is traditionally enrooted in patriarchy. Walby101
says how patriarch operates to achieve and maintain the gender inequalities essential
for the subordination of women. According to him Patriarchy is a system of social
structures and practices, in which men dominate, oppress and exploit women.
(b) Definition of Patriarchy
The word Patriarchy literally means the rule of father or the Patriarch and
originally it was used to describe specific type of male dominant family. Patriarchal
tradition can be traced back to Ancient Greece. Aristotle in his work The politics
opined that man is the head of the household; that it is he who holds authority over his
wife and children for the male is more fitted to rule than the female, unless
conditions are quite contrary to nature102. Bacon also said that the husband hath by
law power and dominion over the wife and may beat her, but not in a violent or cruel
manner103. Luce Irigaray in her Bodily Encounter with the mother104 wrote that
their discourses, their values, their dreams and their desires have the force of law,
100
101
102
103
104
Timothy, 2/14.
Sylvia Walby,Theorising Patriarchy,473,(Blackwell,1990)
Aristotle, The Politics ( London, Penguin,1962),as quoted in Hilaire Barnett,Introduction to
Feminist Jurisprudence,57,( Cavendish Publishing Ltd., London,1998)
Ibid at 57,
Ibid at 57
36
everywhere and in all things. Everywhere and in all ways they define womens
function and social role and the sexual identity they are or are not, to have.
In the 19th century John Stuart Mill also regarded the relationship between
the sexes as one of legal subordination of one sex to the other. In his view this
subordination of women by men had been passed down through history. Women were
subjugated by Man on the basis of their physical inferiority and in course of time it
had been absorbed as a rule of law. For Mill marriage remained the last vestige of
slavery in society after the abolition of slavery105.
(c) Patriarchy in India
In India Patriarchy is perpetuated through religion and custom based
personal laws. Religion, traditional and cultural values always safeguard the interests
of Patriarchy which operate through family norms106. The father/Husband rules the
family and exercises absolute control over all members of the family. The wife is
strictly tied to him with the lifelong duty of obedience.
In 1971, the Government appointed a committee on the status of women to
examine the impact of the Constitution, legal and administrative Provisions on the
Status of women. The Committee in its report stated that cultural patterns and forms
of Patriarchy all too often collude to keep women in subordinate position. The states
in India give tacit support to patriarchal forces by not enforcing its own laws and
program which challenge the basic gender equality107.
105
106
107
37
Socialization
108
109
110
111
Janaki Nair, Women and Law in Colonial India. A social history,189( Kali for women in
collaboration with the National Law school of India, Bangalore1996)
The 90th Report of the Law Commission of India on The Christian Marriage and Matrimonial
Causes Bill,1960.
Ibid.
Jivika Marinova, ``Gender Stereotypes and the Socialisation Process`` 2,available at www. un. org
(Accessed on 22.3.2012)
38
identified as a male or female. From that moment the child is expected to behave in
accordance with the roles customarily assigned to his or her sex. By the time the girl
becomes an adult she finds that her world has been restricted by the rules and
expectations of others. She learns that being born female keeps her different from men
and reduces her rights in law and in practice112.
(e)
112
113
114
115
116
39
117
118
119
120
121
United Nations Report of the Committee on CEDAW supp. No.38 A/55/38,8, General Assembly
official records, New York, 2000.
Ibid.
Ibid at 10.
Indias Declaration to CEDAW under Article 5(a) and 16(a) of CEDAW, the Government of the
Republic of India declares that it shall abide by and ensure these provisions to be in conformity
with its policy of non-interference in the personal affairs of any community without the initiative
and consent.
See supra note 89 at 160.
40
religious norms that do not accord equality in respect of marriage, divorce and
inheritance rights and stressed that the enforcement of personal laws based on religion
violates the right of women to equality before law and non discrimination122 Hence
they recommended to the Government of India that efforts be strengthened towards
the enjoyment of their rights by women without discrimination. It was also urged that
the personal laws must be reformed to make it fully compatible with the covenant123.
(f)
As discussed above personal laws perpetuate Patriarchy and the State is also
not willing to prevent any serious dislocation of Patriarchal familial arrangements. In
this context, it is worthwhile to examine some of the adverse features that Indian
women undergo in the Indian Patriarchal System.
i.
ii.
iii.
She has no share in the property due to the strong force of custom and
tradition.
iv.
v.
vi.
122
123
124
Women are controlled by the family in every aspect of their life 125.
41
(ii)
They are the perpetrators of the family line and the children owe their
social placement through the mother.
(iii)
They acquire their share in the movable and immovable property and
also acquire positions of authority through her.
125
126
127
Ibid.
See supra .note 89 at 145
Ibid
42
(iv) Women are not under social pressure to produce male children or to
prove their fertility as a pre-condition to their position in the family.
(v)
(vi) She controls her own life and her children. In case of breakdown of
marriage, children remain with her128.
4. Gender Inequality- Feminist Perspective
Gender inequality in societies exists due to various factors like cultural,
historical, political, religious and legal. Feminists all over the world subscribed the
view that from time immemorial womens reproductive and nurturing role have
resulted in women being considered as different from men and they were viewed as
the other who always were unequal129.
In the 1960s anthropologists like Bradislaw Malinowski argued that women
from the earliest times had been assigned by men the child-bearing and child
nurturing role130. Property was not vested in the female and it was controlled by men.
Hence a brother, instead of a sister had power over the property. Marxist political
philosopher Fredric Engel was of the view that with the introduction of private
property, women were confined to the private sphere of life and this patriarchal
tradition denied women full participation in public life also 131. Patriarchy is the one
factor that was being accepted by all feminists as the root cause inequality.
128
129
130
131
Ibid.
Hilaire Barnett, Introduction to Feminist Jurisprudence,29( Cavender Publishing Ltd,1998)
Ibid at 29
Engels, F. The origin of the family; private property and the state (1884), 1940, London, Lawrence
and Wishart,1884)As quoted from Hilaire Barnett, Introduction to Feminist Jurisprudence,
29,(Cavending publishing Ltd. London,1998)
43
(a)
Marxist Feminism
Marxist Feminists support the economic theories of Karl Marx. In the Origin
of the Family, Private Property and the State, Fredrick Engels132 was of the view that
womens oppression developed with the disappearance of matrilineal families. He
further pointed out that with the Patriarchal family, males gained power within the
family and society due to the development of agriculture. Through farming men
became property owners and wished to have a method to pass this property to
children. For this matrilineal descent had to end since men did not have clear heirs in
that system. Consequently matriarchal law of inheritance was overthrown and the
male line of descent and the paternal law of inheritance were substituted133.
Engels further pointed out that male oppression of females depend on
property rights and inheritance. According to him the only solution to end this
oppression is to eliminate this property rights. So long as men have property, women
would remain subordinate within the family134. Feminist saw support and inspiration
in Marxism because Marxism called for liberation of women from oppression. He
argued that mass revolution was impossible without female emancipation. Marxist
Feminist found that males were completely dominating every area including
thinking. This resulted in womens liberation movement in the late 18th century.
(b)
Liberal Feminism
132
133
134
The most important work and basic reference point is Engels Origin of the Family, Private
Property and the State. Published in 1884 by Engels, a year after Marxs death.
Supra note 114 at 126
Ibid.
44
differences135. This can be achieved by removing the inequality in law and society
because a legal system is framed on the basis of social norms that are always male
oriented. Hence law would become fair only if it is restructured to include women
also. The arm of law must be extended to private sphere.136.Womens contribution to
the family in the form of domestic labour is left untouched by the State.
Liberal feminist like Mary Wollstonecraft,137 Betty Friedan138 advocated for
the elimination of practices and laws which effectively deny women access to public
sphere of life and confine women to the private sphere, the home. Men in turn took
control of public sphere including policy and law making. As a result women were
silenced and kept under constant subjugation139. Hence women would not get an
opportunity to raise their voice in public matters.
(c)
Radical Feminism
Radical feminists on the other hand focused on the problem of the Universal
dominance of men over women and the consequent subordination of women to
men140. Their aim was to challenge and to overthrow Patriarchy by protesting against
stereotyped gender roles and male oppression of women141. So they demanded for a
135
136
137
138
139
140
141
45
radical restructuring of society. The western radical feminists assert that their society
is patriarchal which primarily oppresses women142.
They posit the theory that due to Patriarchy women are viewed as the other
and are always oppressed and marginalized. The only solution to deal Patriarchy and
oppression of all kinds is to address the underlying causes of these problems through
revolution. They also firmly believed that eliminating Patriarchy and other systems
which perpetuate the domination of one group over another will certainly liberate
everyone from an unjust society143.Radical feminists were the first to demand total
equality in the private sphere which includes household work, childcare, emotional
and sexual needs144. They have also succeeded in bringing about Equal Rights
Amendment (ERA) in US 145.
Catherine Mackinnon, a prominent radical feminist views inequality as a
question of the distribution of power. The most important difference between women
and men is the difference in power, men dominate women and woman is subordinate
to men. She says that society and law is male. The State is male jurisprudentially
which means that it adapts the stand point of male power on the relation between law
and society146. She views gender issue as not one centrally concerned with analyzing
differences between men and women, rather she concentrates on distribution of power
between man and woman. Men have power women do not. Men dominate, women are
142
143
144
145
146
Ibid.
See supra .note 114 at 163
Ibid.
Shewta V.Yadappanavar,``Feminist Jurisprudence Vol XXXVII,Indian Bar Review,181(3.4.2010)
Mackinnon.C. Feminism, Unmodified, Discourse on Life and Law, 1987, Cambridge, 1987) see
supra note 127 at 165
46
subordinate and they are subordinated because they are women. 147 So she demands
eradication of gender hierarchy because the difference strategy creates economic,
political and social subordination. Male using his power oppresses women. In the case
of women they are oppressed on the basis of their sex. Therefore radical feminists
find patriarchy as the root cause of oppression of women148.
Mackinnon also opposes the sameness theory149. The real issue is male
power and dominance. She cites domestic violence, rape, prostitution, pornography as
examples to show that these things happen only to women 150. Law, with its objectivity
and rationality, she says is a means to keep the status quo of male power and female
powerlessness. Men become dominant through ownership of property. Up on
marriage the wifes property is transferred to the husband through the one flesh
doctrine. So she demands power for women. She also challenges the sameness
approach adopted by law by saying that sex is a natural difference, a division, a
distinction under which there is a stratum of human commonality, sameness
151
Similarly Shulamith Firestone from US in her book The Dialictic of Sex argues that
the sexual division of humanity into two distinct biological classes was the origin of
all other social divisions. She finds the solution for womens oppression in modern
technology like birth control and gestation outside the womb152.
147
148
149
150
151
152
Ibid
Ibid.
The theory that we are same, we are same, we are same. For details see note 128 at 165
See note 128 at 139
See supra note 113 at 167.
Marxism, Feminism and Womens liberation, available at: http:// www. bolshvik. org/ 1917/ no
19/fem.pdf. ( Accessed on 07.09.10.)
47
(d)
Cultural Feminism
153
154
155
156
157
Alcoff Linda, Cultural Feminism versus post-structuralism: The identity crisis in Feminist
Theory. 406(1988) The University of Chicago Press. Oct-Nov-2006,Jstor.org, Journal of women
in culture and society (1988.)
Ibid at139.
See supra note 151 at 406
Chodo row.N,The reproduction of mothering.Pschoanalysis and sociology of gender
(Berkely,1978)As quoted from Hilaire Barnett,Introduction to Feminist
Jurisprudence,144(Cavending publishing Ltd. London,1998)
Gilligan.C., In a different voice; Psychological theory and womens Development,xxvi,
Cambridge, Harward University Press,1982)see supra note 156 at 146
48
Socialist Feminism
158
159
160
161
Luce Irigaray, Speculum of the other Woman, (1974. Cornell University Press, 1985).See supra
note 156 at 148
See supra note 156 at 151
Ibid at131
Pateman.C., The Sexual Contract,339-41, (London, polity1988).See supra note 156 at 140
49
162
163
1.
2.
3.
4.
Enns Carolyn, Feminist Theories and Feminist Psychotherapies,35( New York, Haworth Press
1997)
The Hindu, Sunday, April, 2011, The International Labour Organisation (ILO) has recently come
out with a study on womens unpaid work titled: Cooking, caring and volunteering; unpaid
work around the world. In the three emerging economies, India, China and South Africa women
spend more time doing unpaid work than men.
50
5.
2.
3.
4.
5.
6.
VIII HYPOTHESES
The following hypotheses are formulated for the purposes of the study.
1.
2.
The root cause for gender injustice is denial of equal share in the
ancestral property.
3.
4.
5.
6.
51
IX METHODOLOGY
The study is mainly doctrinal and partly empirical. The doctrinal study is
based on secondary data gathered from various sources such as books, journals,
magazines, newspapers and Law Reports. For this purpose the researcher visited
several libraries in and out of the State. She also undertook experience survey and
consulted legal academics, luminaries, social activists and Judges for getting valuable
insights and inputs regarding the problem. The researcher has applied analytical and
comparative methods for data analysis.
The primary data were collected from Kottayam district of Kerala and
Kannyakumari district of Tamilnadu using stratified random sampling method. The
total women belonging to Estate owners family formed one stratum. Secondly simple
random sampling was taken and the same (1%) was taken from each stratum. These
samples were consolidated into the final sample.
X SCOPE AND LIMITATIONS OF THE STUDY
Since the concept of gender injustice is very wide, the researcher has
confined her study to only the property rights of Catholic women of Kottayam District
and Kannyakumari district of Tamilnadu. The researcher has selected Kannyakumari
District in Tamilnadu because Kannyakumari was part of the erstwhile Travancore
State and they were governed by the Travancore Christian Succession Act, 1916. At
the time of Reorganisation of States in 1949, Kannyakumari became part of the
reconstituted Travancore Cochin State. Later during the linguistic reorganization of
States Kannyakumari was integrated with Tamilnadu.
The study will be limited to the women belonging to Estate owners family
in Kottayam District of Kerala and Kannyakumari District of Tamilnadu. The
52
researcher has collected decided cases regarding property issue from the
Kannyakumari and Madurai Courts and also from the Courts of Pala, Kottayam and
High Court of Kerala.
XI PLAN OF STUDY
The study is divided into seven chapters. The introductory chapter
contains the need for study, review of literature, clear statement of the problem,
objectives of the study, hypotheses, methodology adopted, scope and limitations of
the study and also the theoretical perspectives consisting of definitions, causative
factors and theories of gender justice.
The second chapter is on The status of Christian women in the Christian
personal
law.
It
discusses
origin
of
Christianity
in
Travancore
and
54