Her Marital Home: His Inherited Property

07/22/2013

Whenever there is a mention of women’s rights and any proposal of legal protection for women especially desi women everyone becomes an expert and filth starts flying from all directions thanks to internet and its anonymity. It is a sad story just like the anti stalking bill in the parliament few months ago where democratically elected lampoons were jumping up and down to the extent that one even went ahead and said, “who amongst us hasn’t chased women? We are men that is what we do?” With such a sense of entitlement it is hard to expect any good coming by for women.

Last evening, IHM sent DG one line email asking what are DG’s views regarding the wife being given a share from the house a couple was living in, even if it is inherited or inheritable (like in Joint Families I suppose). She was referring to her latest post about the new bill in the parliament. We have done this in the past in-boxing co-bloggers to clarify concepts and issues. What DG wrote back IHM suggested she post here for everyone to read, hence this post. Along with that response DG has also included few comments she had made at IHM’s current post.

DG has spent most of her activist life working in the grassroots working with women and children  experiencing domestic abuse while she was still in des and then abroad. The organization she is affiliated with has actively contributed to drafting of this bill over the decades. In future posts DG will post few examples both from her personal and professional experience how the concept of marital home actually works in real life, here she’ll stick to technical stuff related to marital home and inherited property of the male spouse.

Colonial roots of current problems

Going back to 1858 when India came under the rule of crown and the white man’s burden set out on the project of taming the native male beast who brutalized native women, rather emasculating the native male for crown deemed it incapable of taking care of their own women. The native male elite in order to resist this emasculation gloated in the distant past that he called “golden age of ancient India.” It was like a blind man searching for a black cat in a dark room that never was there. Coming back to the topic, the natives did not have a singular rule of inheritance though they were patriarchal like the colonizer but they had too many customary laws governing the actual practice of property succession depending on the locale and community. For the purposes of uniform administration and tax collection colonizer selectively chose areas of reform, land restructuring and reform being the primary then selectively leaving the family laws for native elite to feel in control. New land revenue systems included landlord systems, individual cultivator-based systems, and village-based systems the latter two allowed individuals and families to maintain the de facto structure of property rights that previously existed; patriarchal and male coparcener neither benefiting nor disinheriting women all together.

The Indian Succession Act of 1925 did not include Hindus who were majority and were governed under the Mitakshara system of succession. The Hindu Women’s Rights to Property Act, 1937 for the first time made a Hindu widow a party (possession not ownership as coparcener) to deceased husband’s estate along with her son (coparcener) not daughter. It was only in 1956 with the advent of Hindu Succession Act 1956 that women’s right to property is spoken of. In their over zealousness the law makers actually harmed the interests of women by tweaking the Mitakshara succession system. By definition:

1. coparcenary (unity of ownership) is the essence of this system.

2. son was a coparcener by virtue of birth in the joint family property, as an adult he could demand partition of this property during the life time of his father.

3. son could prevent (both in action and word) his father from unauthorised alienation of ancestral property.

4. a coparcener has no right to alienate his undivided share in the joint family property. On his death without male offspring, his share goes to his brother.

5. The widow of deceased coparcener has a right to maintenance but she cannot enforce partition.

With Hindu Succession Act 1956, Section 6, a daughter was added as an coparcener but mother, wife and widow were left out. The father could dispose his share in undivided joint family property and could alienate another coparcener both son and daughter by making a will, this also applied to residence as question of agricultural property for women was never asked. In Mitakshara system if daughters had no coparcenary rights at least they still could reside under their father’s roof and a father could not throw away a son who refused to tow the line be it disagreeing to an arranged marriage or marrying outside the caste. When one law gives women access to something the other competes to disempower them at the same time. Not many fathers treated daughters as coparceners but many chose to will them out of natal family’s residential property. It is this statute men on electronic media are making much hue and cry about that women as daughters should ask for their share from fathers and not claim a share in husband’s inherited property. There is yet no law that makes wife a coparcener in her husband’s undivided joint family property. It is a long road ahead.

It is Hindu Succession (Amendment) Act 2005(HSAA) which deleted the gender discriminatory clause on agricultural land for just Hindu women not all Indian women. The Punjab Haryana examples given about women denouncing their right to father’s property in favor of their brothers actually never existed until HSAA 2005. Married daughters were just making a promissory note that they’ll not file a suit as a coparcener to the natal home, thus only an unmarried daughter had a right to remain in her father’s home but not own it.

English Marriage vs Desi Marriage

Now coming back to the primary question what happens to the roof over woman’s head if she lived her marital life in her husband’s undivided joint family. It is not surprising if the legal meaning of marriage differed in England and India in colonial times it continues even today. The British, once married  the couple is considered as a single legal independent unit that set up a household together and neither their parents nor their children had any control over the assets they acquired together. Whereas, in India the new bride “joined” man’s family in his natal home where people of two or more generations in vertical (by blood) and horizontal (by marriage) hierarchy lived together under one roof and only coparceners had the right to residential property during the life time of the primary coparcener (husband). Now from this understanding we can draw number of hypothetical scenarios that are generating so much paranoia in Indian men about their emasculation by Indian legal system and women.

Breaking up while under the joint roof

In case of marital discord women have been thrown out of joint families in the middle of night and when they ask for spousal or child support men wash their hands of the responsibility by saying the house belonged to the family and he like her was just living there thus has nothing to give her. If she insists the man seek his coparcenary rights and take his share of property and then give her what is rightfully her due be it a room or an amount that would be half of what his share amounted to. The “karta” the head of the family, father of the man can immediately alienate/disinherit the man from his coparcener rights thanks to HSA 1956  in order to prevent the daughter-in-law from begetting anything. It is more complex than it is visible to our eyes. It is basically about primary residence of the married couple during the entire duration of the marital union no matter where it is, in the extended family or ancestral house they live in and other family members may be living abroad.
The share will be calculated according to the duration of marriage and it will be subtracted from  what ever is man’s share with respect to other share holders in the joint family so that woman can have a roof over her head or be provided with money so that she can buy a place or pay the deposit for a rented home (deposit often runs in lakhs). A woman who was married for three years cannot have same percentage of share as the one who was married for twenty years. Use some common sense.

What about other women under the joint roof

Some people are worried about the other women living under the same roof who will be rendered roofless in compensating one woman. There are ways to work this out the one who is leaving the joint household need not be paid lump sum at one time she can be provided with easy monthly payments that will give her rent money and living expenses. It is not a rocket science.

Joint Family Business

There is a big section of middle class men that works in family owned businesses and no one knows who is earning what. It is here the court has to decide what the primary earner (usually man) earned during the life time of marriage so that wife can be compensated and child care can be assured.

At the name of woman walking out of a bad marriage man’s family immediately declare him absconding or lampoon who doesn’t contribute an iota to family business whom they have disinherited quite some time ago. Thus woman is rendered penniless and roofless in a minute.

For example: For example: If Sr. Ambani was still alive and one of the brothers were to seek divorce even though they lived in separate homes but still earned from the family business. The man’s share can be calculated from the day he got married divided by three (if only father and 2 sons were working together, but it is here the problem arises coz’ they have Sons-in-law working for them too) so it will be divided by joint business owners and then divided by 50% between man and the woman for the duration they were married.

Same way if the woman is married to a marginal farmer (someone with a very small holding but is also a peasant in other people’s fields to make ends meet), it will be what they made together, even if it is a hutment and little earning they brought from that one field.

The minute you talk about giving something to the woman the number of shareholders go up and her share is reduced to nothing or families go ahead and declare their son or brother is not contributing to the business or has cheated or is alcoholic or lampoon. Hamare kahane mein nahin hai…

A woman asked:

Ansestral property is handed down thru family and why would I split that??

And DG’s answer is:

for exactly the same reasons you’ll uproot a woman from her natal home and force her live in an almost stranger’s home with his natal family.
This is exactly the reason used for centuries why would you split ancestral property by giving a share to female child who is going to leave at marriage (paraya dhan).

The idea of community property/joint property, the property and assets acquired by the couple during the entire duration of the marital union is pretty alien to Indians given the free ride men have in patriarchy. In rural Rajasthan there is a saying, the children belong to man and his family for the woman did not bring them from her natal home, like wise she can leave with what he brought with her. If a woman stays home and does the status production work (making it possible for man to work outside home while she makes sure he has clean clothes for work and his guests are taken care of when they visit and so on…) along with care giving and upbringing of children according to the caste and class position etiquette. Even if she was working outside home for income why should there be any doubt about dividing the assets and the savings they acquired  together during the total duration of this playing house?

Another smart elk asked:

also if the mans a liability in terms of financial loans acquired before and after marriage, will the wife gets a 50% share of that too on divorce.why not ??

Yes, woman and her children suffer more than the idiot who gambles away family assets and his earnings. When you talk about equal division of joint marital property losses are included by default for the duration of marital union not for what debt one acquired before marriage, be it for building his parents a house or paying for his sister’s dowry or capital fee for his brother’s admission.
Same way a woman may bring her student loans into marriage she is responsible for them not him. It is student loans that become a bone of contention with man and his family coz’ they expect her parents to pay for it and she should just hand over her salary to them as is spend it in the marital home. As more women are marrying late and are also marrying for second time they are going to bring assets into marriage, some will bring student loans too. What man or woman brings into the marriage; assets and income they had acquired before they got married remains their sole property, they can choose to keep it as it is or dissolve it according to their volition the spouse or kin should have no covert or overt right to it.

There is another bunch of monkeys jumping up and down screaming women will marry only for man’s property and in one night/month of marriage they’ll file for no fault divorce and beget 50% of his property that his forefathers worked hard to beget. They forget it takes minute to wed in India and it takes years to dissolve that marriage. No person can file for divorce prior to 365 days from the day of solemnization of a wedding no matter what the reason is, one has to be married for a year before they can file for divorce. In the case of no fault the stipulated period is three years.

In a country where registration of marriage is still an alien concept and only 3% pay taxes because they don’t have many options of not paying to imagine a bitter spouse will let a woman rest her hands on anything extra is sheer paranoia than realistic fear.

If anyone wants to make any corrections in the HSA 1956, HSAA 2005 please feel free DG has tried to put it in very simple words, it’s almost 3am DG has to sleep.

Good Night.