APURVA SHANKER
2ND YEAR, B.A.LLB.
STUDENT AT NUSRL, RANCHI.
ABSTRACT
The multicultural depiction of India has often been presented to be that of harmony and cohesiveness with rare disputes of minute significance. The variance occurring out of culture, tradition and faith is accommodated through personal laws. It is, however, true that the personal laws are not infallible. Similar people under similar circumstances can be subjected to different legislations, based only on the criterion of religious faith. Moreover, personal laws are influenced by the presence of a patriarchal society, wherein the laws catapult men, whether directly or indirectly, above the strata of women. The recent judgement in Vineeta Sharma v. Rakesh Sharma (2020) has received notoriety and praise for subduing the prevalence of such patriarchal influence in Hindu Succession. Even Muslim succession has been subject to discourse. However, the status of Christian women in matters of succession to property remains unmentioned and neglected. The legislative history of Christian succession in India dates back to 1865, though, in the present day, the Indian Succession Act, 1925 takes effect. While the former Acts have often been considered to have a high inclination towards patriarchy, the present Indian Succession Act cannot be depraved of such notion either. The 247th Law Commission Report in 1985 remarked that the law “is not in conformity with (the) current thinking as to the status of women” and “the law is in need of a reform.” However, no legislative action was followed upon the report. Though the question of legislative validity of Christian succession laws is subject to judicial intervention, the question of what implications it has upon women is subject to analysis.
This research intends to further the understanding of the deplorable state of Christian women in matters of succession, whilst reconning it in a comparative context with the leniency of Hindu and Muslim succession in India. The research traces the legislative evolution of Christian succession in India with the object of highlighting the limitation of the Indian Succession Act, 1925 in addressing the overlaying patriarchal theme in women’s succession.
Keywords: Personal laws, Patriarchy, Christian Succession, Reform, Indian Succession Act of 1925.
INTRODUCTION
Christianity is one of the most prominent religions in the world. Its presence in India cannot be underestimated, as 28 million adherents of the religion reside in the country as per the 2011 Census report.[1] While such numbers present the religion as a minority in India, the prevalence of their norms, customs and culture is fairly evident. It is to note that Christian personal law lacks the textual basis of personal laws in India and general law extends its applicability for Christians.[2] Despite the religion citing Christ, the Holy Bible, traditions, reasons and precedents as major sources of their law[3], the same lacks the requisite legislative enforcement to qualify as codified law. Originally, the Indian Succession Act, 1865 was followed alongside Travancore Christian Succession Act, 1916 and Cochin Christian Succession Act, 1921. However, post judicial pronouncements, in the present, only the Indian Succession Act, 1925 (Hereinafter, ‘The Act’) governs matters pertaining to Christian succession of property.
While the former Acts have often been considered to have a high inclination towards patriarchy, the present Act cannot be depraved of such notion either. Equality and harmony are desired actions of law. However, bias is the unnatural bi-product that has dominated society since its evolution. Biased notions of superiority and inferiority have been embedded so deeply in society that misogyny is considered a normal social phenomenon.[4] Patriarchal societies have refused to let go of the pre-conceived notions of bias.[5]
Despite the advocacy of people for providing ample rights and opportunities to women, prevalence of societal bias against women have negatively affected the application of succession laws.[6] The prevalence of gender-biased provisions can be found within Part V, Chapter II of the Indian Succession Act, 1925.
Research Methodology
The research can be classified as a Doctrinal Research. The researcher has employed qualitative data and has furthered the research with a descriptive research design. Secondary sources have been used for the purpose of the research. Statutes, bills, e-newspapers, reports, judgements and articles serve as sources for the researcher to evolve an understanding and pursue the objectives of the study. The study aims to achieve the following objectives: firstly, to gain insight into the status of Christian women in matters of succession; secondly, to examine the implications of judicial decisions regarding Christian succession; thirdly, to shed light on the existence of gender bias within the Indian Succession Act of 1925; and finally, to extract relevant suggestions from the 247th Law Commission Report to formulate recommendations.
LITERATURE REVIEW
In ‘Repeal of the Travancore Christian Succession Act, 1916 and its Aftermath’, author Susan Vellapally describes the transitional effect that the landmark case of Mary Roy v. State of Kerala[7] had in dispensing a portion of the rigid patriarchal setup prevailing at that point in time in the state.[8] The literature encapsulates the political and social circumstances before, during and after the judgment. Susan provides an analysis of the developments post the judgement while accounting for the social status of Christian women, who were formerly distraught by the legislation specific to Travancore. She discusses the attempt of the legislature to circumvent the judgement in Mary Roy through the introduction of the Travancore Cochin Christian Succession (Revival and Validation) Bill of 1995, and its subsequent failure. While the literature sufficiently accounts for the equity argument against a patriarchal setup, its consideration for legalities is limited. The article lacks the legislative perspective, which this study wishes to compensate for.
Author Sona Khan in ‘Inheritance of Indian Women: A Perspective’ puts forth a constitutional understanding of inheritance of Indian women, while corelating concepts of social welfare and domestic well-being.[9] The author highlights the inadvertent stratification of women in the name of religion through the application of personal laws. It preaches for a Uniform Civil Code, as a measure that would effectively be in favor of women. Despite attempting to provide a resolutive measure for the religious subduing of women, the article fails in specifying what perils women are subjected to. Moreover, the article does not account for the gender bias in the application of Indian Succession Act, 1925.
In ‘Gendered Justice’, M.J. Joseph targets that patriarchal influence in matters pertaining to right of inheritance of Christian women.[10] It targets the then government of Kerala for non-conformity with the verdict of the Supreme Court in Mary Roy case. Much like Susan Vellapally, Joseph criticizes the Government’s attempt at pandering to the orthodoxia of which patriarchy is a part. For Joseph, non-conferment of the right of Christian women is the equivalent of assigning them a secondary status. He refutes the inequality against Christian women, but does so, without criticizing the legislations in place. Joseph’s intent is centered around depriving society and the government any option to curtail women in an inferior spot to that of men.
I. Development of Indian Christian Laws of SUCCESSION
The Indian legislations concerning religious law are an amalgamation of various cultures, norms, identities and ideologies. The pluralistic existence of such heterogeneity cannot be expected to conform to singular laws pertaining to marriage, divorce, maintenance or succession; for all differences arise from different traditions and ideologies. To harmoniously incorporate matters of such nature in society, different sets of laws have been developed to cater to individual groups. Christians in India are no exception to this trend.
However, in matters pertaining to Christians, the law has often prioritized a linear approach. The evolution of Christian Succession Laws can be traced through the course of 3 distinct phases:
- Phase 1: Prior to 1865
In this phase, traditions and customary practices determined the religious identity of a person. It required the demonstration of adopted western customs and lifestyles by the person, to affirm his identity as a Christian.[11] Moreover, it implied the abandonment of traditional Hindu practices. It was done to ensure that the subject fell beyond the purview of Hindu Law.[12] The person concerned was to be governed by the customs of the time period.
- Phase 2: Post 1865 to 1925
In 1865, Indian Succession Act was introduced. It put beyond the definition of a Christian anyone who followed the norms of Hindus and were not westernized.[13] The Succession Act of 1865 applied to individuals who could not establish their affiliation with any of the other religions – Hinduism, Islam, Buddhism, Sikhism, or Jainism.[14]
- Phase 3: Post 1925
In 1925, the 1865 act was repealed in favor of a new legislation – the Indian Succession Act, 1925. Section 29 of the act, pertaining to applicability, provides that the legislation governs anyone who is not a Hindu, Sikh, Buddhist, Muhammadan or Jain.[15]
The second sub-clause to the section provides that the act would not have an overriding effect over any other law in force[16] – thereby continuing the enforcement of Portuguese Civil Code of 1867, French Civil Code of 1804, Travancore Succession Act of 1916, Cochin Succession Act of 1921 and more. Such continued parallel enforcement was problematic for one and all in determining their rights in matters of religious origin.
II. The conflicting phase of Christian Succession and its adversity towards women.
As established in the prior chapter, the final phase pertaining to Indian Christian Succession saw the concurrent functioning of a variety of conflicting laws. Moreover, the victim of such dissonant functioning of law were women. Amidst the conflict, there existed 9 distinct groups of Indian Christians – South Travancore Christians, Latin Christians of Central Travancore, Syrian Christians, Latin Christians of Kottayam, Caste Christians, Marumakkathyam Christians, Protestant Christians of Central Travancore, Bharathars, Arasars.[17]
A. Unjust succession laws
For the time, under any denomination of law, inheritance for Christian women was unequal. Among Syrian Christians, it was believed that the streedhanam paid by the girl’s father was the share of the daughter in the property.[18] It was valued in rich families to be a little more than half of the son’s share, whereas in poor families it was valued to be less than one-third or one-fourth of the son’s share.[19] In addition to this, should a daughter be widowed widows were given merely maintenance rights and but not a share in her husband’s property.[20]
The justification such acquittal of the right to property was given in the lines that being majorly agricultural communities and it would be difficult for them to cultivate on the land provided to the daughters, as they would be separated to a far-off place. Upon the enactment of the Travancore Act of 1916, widows were entitled to a life interest in the property of the deceased husband. The daughter of the deceased was to be given one-fourth of the son’s share or sum of Rs. 5,000, whichever was lesser.[21] The sum of 5,000 was put into the verbatim without any inflation related considerations or the opinion of the Christian community.[22]
The quintessential take from analysing this valuation is detrimental to equality. Not only does the verbatim suggest that a daughter is the equivalent to one-fourth of the son’s share and that sum of Rs. 5,000 is roughly enough to compensate for the valuation of her life, it uses the term ‘whichever is less’ to opine the strong patriarchal undertone of society. This act, along with Cochin Act of 1921 was challenged in the Mary Roy case on the ground of violation Article 14 of the Constitution[23] and subsequently put to rest for being a disdain in an equitable society.[24] Post-judgement, Indian Succession Act of 1925 has occupied the paramount position in Indian Christian Succession.
B. Educational Limitations of Women
Reinforced patriarchy, patrilocality and a culturally dominated orthodoxy prevailed without opposition at the time of such formulations. At the time of the enforcement of the Indian Succession Act in 1925, only 2.9% of women were literate. By the end of 1951, statistics reflected that only 8% of Indian women were ‘defined as’ literate. Even with the progress of the next two decades, the literacy rate stood miserly at 21.97%.[25] In the presence of such statistics, it is logical to deduce that the societal status of women was still far from being uplifted while such succession laws were in prevalence. Still subdued by the presence of the societal norms of restraint, women were in no position to develop and grow.
With such restraint in societal status, where education was a rarity, expecting women to cannon an opposition in matters of unjust succession is unrealistic. It was not until decades that the matter of bias was put to the test in the judiciary and the reason for such delay was the subversive educational condition and awareness of women. Coupled with the exploitative nature of the Indian Succession Act, the period glorified misogyny against Christian women.
III. Lack of Gender Parity in Indian Succession Act, 1925
The Act incorporates Sections 42 to 48 of the Indian Succession Act of 1925 to go along with the reading of Section 33(b). The latter section states that in the absence of any lineal descendants of the intestate, a widow is entitled to a share amounting to half of the property[26], whilst the remaining half is to be concurrently divided in the manner provided with Sections from 42 to 48.[27] The share of the mother in the property of the intestate is said to be highly disproportionate compared to that of the father because for the mother, there exists no fixed share. A mother’s share is contingent upon the number of siblings of the intestate. [28]
Section 42 of the Act puts forth that should the father of the intestate be alive, the property in its entirely would be succeeded to him.[29] The mother is completely ousted from consideration within the purview of this section, despite her sharing the equal status of a parent as that of the father. Section 43 of the Act discusses succession in matters where the father has pre-deceased the intestate.[30] In this scenario, either of the siblings of the intestate are considered primarily over the mother. Similarly, in Section 44 a scenario is devised without any consideration for the mother.[31] It is only through the verbatim in Section 45 of the Act that mother of the intestate is considered, unfortunately, however, on an equal footing with that of the intestate’s nephew or niece.[32]
Ultimately, section 46 of the Act, entitles the mother to the absolute property if the father, brother, sister, nephew and niece of the intestate are pre-deceased or non-existing.[33] A chain of 5 relations is prioritized by the legislation over the mother, despite sharing the closest bond of relation with the intestate. Additionally, Section 48 employs a per capita approach for distribution of the property. In a scenario where two brothers (let’s say, A and B) have passed away, A leaving behind two daughters while B with one daughter, according to Section 47, A and B should have received an equal share of the property.[34]
Ideally, A’s daughters should inherit their father’s property, while B’s daughter should receive only half of the property (which belonged to her father) since she has no siblings. However, due to the per capita distribution method, B’s daughter will receive only one-third of the property, and her father’s share will be allocated to someone else. This is divisively unjust.
IV. Consequential disparity against christian women
The right of equality conferred on a woman vis-à-vis their male counterpart is a globally accepted concept and the same has been acknowledged by the Supreme Court.[35] In C. Masilamani Mudaliar v Idol of Sri Swaminathaswami Thirukoil[36], the Supreme Court opined that “personal laws conferring inferior status on women is anathema to equality.” In Sarla Mudgal, the Supreme Court remarked that religious practices which are violative of human rights and dignity and lead to the deprivation of civil and material freedoms, are not autonomy but oppression.[37] It is a travesty in the light of justice that the provisions of Indian Succession Act of 1925 continue to be enforced unaltered.
In this pretext, the reforms and evolution that the laws of Hindu succession and Muslim succession have been subjected to, far exceed any attempt made towards resolving the sub-equal status of Christian women. The amendment to Section 6 of the Hindu Succession Act, 1956 is the contemporary premise to this argument – wherein the very basis of Mitakshara school of thought was altered by including daughter in the same strata as a son.[38] In the same line, Muslim Women (Protection of Rights on Marriage) Act, 2019 was put into force in contravention to the conventional practices of Muslims. If the legislature is able and willing to withdraw itself from the conventional social norms in the case of Hindus and Muslims, no justification can suffice its non-interference in the case of Christian succession.
Moreover, the aforesaid Muslim Women (Protection of Rights on Marriage) Act of 2019, was a product of widespread desire[39] and the judgement in Shayara Bano v. Union of India.[40] The judgement set a precedence for judicial review in certain grave matters involving personal laws. Though not explicit, it deviated from the landmark judgement in State of Bombay v. Narasu Appa Mali, wherein the court held personal laws to be impervious to judicial intervention.[41] The Court breached its limit, as set by Narasu Appa Mali, and, thereby, allowed for future petitions seeking prevention from erroneous religious practices. As such, judicial intervention can be valued as a course for scrutinizing the Indian Succession Act, 1925, should the legislature continue its neglect for the matter.
V. The view of the 247th Law Commission Report
In 2014, the 247th Law Commission Report[42] reported in consonance with the 110th Law Commission Report[43], observing the lack of gender parity in the Indian Succession Act of 1925.[44] It put forth recommendations and measures for its correction. It was formulated through an analysis of the Christian Succession Acts (Repeal) Bill, 1958, which ultimately could not achieve uniformity in Indian Christian Succession. Fundamentally, it recommended the substitution of the word ‘father’ with ‘parents’ in Sections 42 through to Section 48 of the Act. This suggestion not only encapsulated the notion of equal footing of parents but also ascertained that the living parent of the deceased would have the remaining property. The report suggests that the change would “make the law more reflective of rising social awareness in the Christian community and of needs of changing times.” In consequence to this, it reported for an omission of Section 46 of the Act. Moreover, with regard to Section 48, the report suggested the distribution be carried as per stripes and not per capita. Through its recommendation, the Law Commission Report incidentally reported in support for welfare of widows and mothers. However, the report could not bring into fruition the changes it so recommended. The legislature has avoided endeavouring into gender justice insofar as Christian women are concerned.
Findings, Suggestions and Conclusion
The research yields the following observations: –
- Through judicial pronouncements, the overarching patriarchy has been dented significantly in the light of succession to Indian Christians. Precedence and literature have expanded the ambit of equitable rights, while comparatively alleviating the situation to a better pedestal.
- While the Indian Succession Act of 1925 has successful exonerated the other succession related laws for Indian Christians, it remains problematic with its inclusion of traditionally limited view of mothers and widows, in the lieu of succession. This gender bias, despite having been a major subject matter for the Law Commission of India, has continued unaltered. Indian Christian Women are subjects to the same erroneous provisions for nearly a century.
The research suggests that there exists a need for legislative intervention to alter the verbatim of specific sections of the Indian Succession Act, 1925, if gender justice is to be realized in its true sense. In the light of the findings of this research, it can be stated that the recommendations of the Law Commission are apt in reforming Christian succession, and the same is suggested to be followed. If the legislature continues its insensitive course of neglect, the judiciary may be needed to intervene and venture in the dimension of social justice, by exercising the inalienable principle of justice, equity and good conscience. While it would be unexpected for the judiciary to endeavour into social justice, it is not unprecedented.
In conclusion, it can be said that the years of efforts and struggle still continues with no fruition with regard to the status of Christian women in India. Despite the influence of feminist jurisprudence in bettering the situation of women within the ambit of Hindu and Muslim personal law, Christian women have not received the extent of attention that they should have had. In the current discourse surrounding gender equality, it is humiliating for India to acknowledge that women as a whole have been deprived of equal treatment due to religious laws.
Authored by:
Apurva Shanker
2nd Year Student, B.A.LLB.
National University of Study and Research in Law, Ranchi.
[1] Soutik Biswas, Pew study: Little change in India’s religious make-up in 70 years, BBC News (2021), https://www.bbc.com/news/world-asia-india-58595040 (last visited Jun 11, 2023).
[2] Chandra Mallampalli, How Christian personal laws have grappled with equality, The Times of India (2017), https://timesofindia.indiatimes.com/india/how-christian-personal-laws-have-grappled-with-equality/articleshow/60821440.cms (last visited Jun 11, 2023).
[3] Mathew Varghese v. Rosamma Varghese, 2003 SCC ONLINE KER 218.
[4] Filipa Melo Lopes, Perpetuating the patriarchy: misogyny and (post-)feminist backlash, 176 Philosophical Studies 2521 (2018).
[5] Id. at 2520.
[6] Christian women in Kerala still denied the right to inherit property, here’s why, The News Minute (2022), https://www.thenewsminute.com/article/christian-women-kerala-still-denied-right-inherit-property-here-s-why-159812 (last visited Jun 11, 2023).
[7] Mary Roy v. State of Kerala, AIR 1986 SC 1011.
[8] Susan Vellapally, Repeal of the Travancore Christian Succession Act, 1916 and Its Aftermath, 22 India International Centre Quarterly 181, 181-190 (1995).
[9] Sona Khan, Inheritance of Indian women: a perspective, 27 India International Centre Quarterly 139, 139–154 (2000).
[10] M.J. Joesph, KERALA-Gendered Justice, 28 Economic and Political Weekly, (1993).
[11] Abraham v. Abraham, 9 M.I.A. 105.
[12] Id.
[13] Dagree v. Pacotti San Jao, ILR 19 Bom 783.
[14] Kamawati v. Digbijai Singh, (1922) 24 BOMLR 626.
[15] Indian Succession Act, 1925, § 29(1).
[16] Indian Succession Act, 1925, § 29(2).
[17] Alice Jacob, 28 Equal Inheritance Rights to Indian Christian Women of Kerala, Journal of the Indian Law Institute 241, 241-245 (June 1986).
[18] Id.
[19] Id.
[20] Riju Mehta, Inheritance Rights of Women: How to Protect Them and How Succession Laws Vary, the Economic Times, (May 2, 2023), www.economictimes.com/wealth/plan/inheritance-rights-of-women-how-to-protect-them-and-how-succession-laws-vary/articleshow/70407336.cms.
[21] Id.
[22] Sebastian Champappilly, Christian Law of Succession in India, 4 SCC (Jour) 9 22, (1994).
[23] India Const. Art. 14.
[24] Supra Note 7.
[25] Hemant Singh, Census 2011: Literacy Rate and Sex Ratio in India Since 1901 to 2011, Jagranjosh.com (2016), https://www.jagranjosh.com/general-knowledge/census-2011-literacy-rate-and-sex-ratio-in-india-since-1901-to-2011-1476359944-1#:~:text=Percentage%20of%20literate%20women%20in,was%20just%209%25%20in%201951. (last visited Jun 11, 2023).
[26] Indian Succession Act, 1925, § 33(b).
[27] Indian Succession Act, 1925, § 41.
[28] Archana Mishra, Breaking Silence- Christian Women’s Inheritance Rights under Indian Succession Act, 1925, 5 SSRN Electronic Journal, (2015).
[29] Indian Succession Act, 1925, § 42.
[30] Indian Succession Act, 1925, § 43.
[31] Indian Succession Act, 1925, § 44.
[32] Indian Succession Act, 1925, § 45.
[33] Indian Succession Act, 1925, § 46.
[34] Indian Succession Act, 1925, § 47.
[35] John Vallamattom and Ors. v. Union of India, (2003) 6 SCC 611.
[36] C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, 1996 AIR 1697.
[37] Sarla Mudgal v. Union of India, (1995) 3 SCC 635.
[38] Hindu Succession Act, 1956, § 6.
[39] Anusha Soni, Let’s Talk Law | Why Personal Laws Survive in Modern India? The Answer is a Knotty Loop Dating Back to 1951, News18, https://www.news18.com/news/india/lets-talk-law-why-personal-laws-survive-in-modern-india-the-answer-is-a-knotty-loop-dating-back-to-1951-7052725.html (last visited Jun 11, 2023).
[40] Shayara Bano v. Union of India, AIR 2017 9 SCC 1.
[41] State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
[42] Law Commission of India, Section 41 to 48 of the Indian Succession Act,1925, Report No.247, (September 2014).
[43] Law Commission of India, The Indian Succession Act,1925, Report No.110, (February, 2014).
[44] Supra Note 40 at pg. 21.