It’s time to change ‘The Man of the House’

Usually where women are seen as major economic burdens, there was a major development towards recognising the identity of women in a family.  The High Court has passed a judgment stating that a woman can be Karta of the Hindu Undivided Family (HUF).

This is a major step towards empowering women, because in reality the entire politics of women empowerment starts from the family itself.

So, yes, it’s time to move over ‘The Man of the House.’

How did the change start?

A respective Dalit family consisted of four brothers, with the surviving eldest shouldering the responsibility of Karta. Trouble began when the brothers passed away. The eldest son of a younger brother declared himself to be the next Karta, but was challenged by the daughter of the eldest brother who also happened to be the senior most member of the family. So, the Dalit family went to the court to decide who should be the next Karta of the family.

Till that time the case was not in the favor of the eldest daughter because according to the Hindu Law, daughter is not recognized as a coparcener or joint heir.

The judgment of the Delhi High Court in this regard turned the tables. It also clarified the 2005 amendment to The Hindu Succession Act that made the daughter of a coparcener by birth.

“If a male member of a Hindu Undivided Family (HUF), by virtue of his being the first born eldest, can be a Karta, so can a female member. The court finds no restriction in law preventing the eldest female co-parcenor of an HUF, from being its Karta,” Justice Najmi Waziri said in a judgment made public.

“The impediment, which prevented a female HUF member from becoming its Karta, was that she did not possess the necessary qualification of co-parcenership. Now that this disqualification has been removed by the 2005 amendment, there is no reason why Hindu women should be denied the position of a Karta,” Justice Waziri observed.

Who is a Karta?

In a joint Hindu family, a Karta manages the HUF along with representing the family in legal, social and political matters. The senior-most coparcener (A person who shares equally with others in the inheritance of an undivided estate or in the rights to it) in the family occupies the position of the Karta. The karta also has a say in the partition of the family. He or she can even gift away the movable properties of the family.

The judgment probably tilted in the favour of the daughter seeking to be the Karta of the family due to what is codified in Section 6(c) of the 2005 amendment. The section effectively states that if Hindu Mitakshara law makes any reference to a coparcener, it would include the “reference to a daughter of a coparcener”, which, traditionally, was a position denied to daughters. Thus the Hindu law’s reference to the senior-most coparcener – the person who is entitled to be the Karta – would also now include the reference to the daughter.

Can law end discrimination on the grounds of gender?

Although we had amended our law, stating that we wanted to end “discrimination on the ground of gender” and end “oppression and negation of her (women’s) fundamental right of equality”, we didn’t know yet whether the actual word of the law could override the prejudices inherent in Hindu law. It is clear now (after the judgment) that the amendment has created room for the position of the Karta – the head of the family – to be occupied by women. This gives more agency to women in matters of the family than if they had only been seen as inheriting a property. This feminist tone lent to our jurisprudence may help similar cases in the future.
Malhar Majumder, a certified financial planner, says that usually, an HUF is dissolved if there’s no male coparcener to take over, and there are many families at present that face this issue. This judgment will save many such HUFs, and will let women an equal opportunity to save tax. “This, however, was a case of inheritance. There’s still need clarity on whether women can now start an HUF and whether Income Tax will recognise it,” says Majumder.

Yet, no to widows!

Unfortunately, the law does not endow the legal right to a widow. Since widows cannot be coparceners, they can only inherit the share of their husband (which further gets divided among all the people who can inherit the property) should the coparceners opt for a division of the property. The Court had ruled in a case that widows could act as “manager” of the HUF and acquire property on behalf of a sole surviving male coparcener (a would-be Karta) provided he is a minor.

Yet, without the right to become a coparcener, the widows are not only barred from ‘creating’ property for the family – except in the rare case that the SC pointed out – they also inherit lesser part of the property. Meanwhile, in the case of married women, the ambiguity still continues. According to lawyers, married women can become the Karta as marriage does not alter the right to inherit the coparcenary. But, they say it is still not clear if her children would retain the same right in the family of her father.

A Progressive Move

Nevertheless, it is a progressive move that signaled independent India’s readiness to move further away from the 12th-century Mitakshara School of law that excluded women from inheritance and, like other ancient religious statutes, had long outlived its utility in modern society. Establishing the rights of Hindu women to manage HUF estates could have other, important indirect ramifications too: for instance, it could strengthen the foundations for the transfer of cash subsidies to the woman of the family under the Direct Benefit Transfer scheme, a critical step in enhancing the currently unenviable status of women in poorer sections of society.

A Deeper Question

India continues to have disparate personal laws based on religious scriptures shaped in very different social circumstances, few of them progressive by today’s standards. This is scarcely a desirable situation in a diverse country that aspires to modernity. On the 66th anniversary of the adoption of the Constitution and just one year ahead of the 70th year of independence, lawmakers may want to remember the Directive Principle of State Policy that advises “the endeavour to secure a uniform civil code”. For India’s women, in particular, a single progressive code could be the best guarantee of equality.