Can Women Be Karta ? A questionnaire was issued by the Law Commission to elicit the views of the public regarding giving of rights to a daughter in the Mitakshara property of a Hindu undivided family. This questionnaire consisted of three parts having 21 questions. Sixty-Seven respondents have replied to the questionnaire.1 30 respondents were from the profession of law and the rest comprise sociologists, NGOs etc. About the case of Daughter becoming a Karta in the Joint Family, about half the respondents wanted the daughter to become a Karta in the Joint Family. The normal position of law does not give such a right to a women except under special circumstances. If such a right is sanctioned by law then what will be the pros and cons ? or why should we sanction such a right, for what reasons should a women be allowed to become the manager of a joint family? To answer all these questions we will have to look into arguments which favour the women becoming a Karta and the arguments which do not favour such a disposition.
Arguments In Favour # Making her the Karta would make her position more respectable Despite the Constitution guaranteeing equality to women, there are still many discriminatory aspects in the Hindu law in the sphere of property rights. In our society maltreatment of a woman in her husband's family, e.g. for failing to respond to a demand of dowry, often results in her death. But the tragedy is that there is discriminatory treatment given to her even by the members of her own natal family. Thus, if she is made the Karta of the family, then all the members of the family will respect her because of her position and women abuse will be controlled. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.
# After The Hindu Succession Amendment Act, 2005 women are recognized as coparceners. In the Hindu system, ancestral property has traditionally been held by a joint Hindu family consisting of male coparceners. Coparcenary as seen and discussed earlier in the present work is a narrower body of persons within a joint family and consists of father, son, son's son and son's son's son. A coparcenary can also be of a grandfather and a grandson, or of brothers,or an uncle and nephew and so on. Thus ancestral property continues to be governed by a wholly partrilineal regime, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. Since a woman could not be a coparcener, she was not entitled to a share in the ancestral property by birth. A son's share in the property in case the father dies intestate would be in addition to the share he has on birth. But after the amendment daughters have from birth coparcenary rights. So they can be kartas as they are now recognized as coparcenors.
# Women are fully capable of managing a business, taking up public life as well as manage large families as mothers. There is still a reluctance to making her a Karta as the general male view is that she is incapable of managing the properties or running the business and is generally susceptible to the influence of her husband and his family, if married. This seems to be patently unfair as women are proving themselves equal to any task and if women are influenced by their husbands and their families, men are no less influenced by their wives and their families.
# This will end gender discrimination in Mitakshara coparcenary by including daughters in the system. Since the girl will be the equal inheritor of her ancestral property, the in-laws may not insist on dowry.2
# It is being suggested that the family dwelling will not be "alienated" without her express consent. Thus will make her position stronger. She will now become a member equal to that as any other male member.
# Such an act will spread awareness and increase literacy among women as they will be involved in family affairs and they will have a say in business.
The Case Laws- In Support The Nagpur position In Hunoomanpersaud’s case3 which was one of the greatest cases in the history of Hindu Law dealt with the powers of a widow mother as manager of property of her minor son, and was in reality a case in the context of manager ship rather than guardianship properly so called. The test of the lady’s act was not who she was or in what capacity she purported to act, but whether the act was necessary or in the minor’s interest as understood by the law.
In Pandurang Dahake v. Pandurang Gorle4, there the widowed mother passed a promissory note for necessity as guardian of her two minor sons. She was a defacto manager and was held to have managerial powers, and the sons could not repudiate the debt.
In I.T Commr. v. Lakshmi Narayan5, the mother as karta of the undivided family consisting of herself and her two minor sons entered into a partnership renewing thereby the partnership which her late husband had had with his brother. The court said that at Dayabhaga law woman could be coparcener and so possibly even managers, and noted that a female might be the manager of a religious endowment. The Act of 1937 has improved the status of the Widow.
The Madras Position In Seethabai v.. Narasimha6 there the widows claimed that they were undivided members of the coparcenery by the operation of the act of 21937. They objected to the appointment of a guardian for the property of the minors. The court appointed one widow guardian of one of the minor and a stranger was appointed the guardian of the other. None of the widows it was held that could be a manager. To be a manager one must be a pukka coparcener, a male with a birth right and not a mere statuary interest. In Radha Ammal v. I.Tcommissioner,7 Madras a mother , guardian of minor sons , purported to execute a deed of partnership admitting a stranger as a power in the ancestral business. It was held that this was outside her powers and the deed could not be registered under section 26(a) of the Income Tax Act 1922. A woman could not be a manager. The argument that Hunoomanpersaud’s case8 allowed the act of a de-facto manager to be binding even if she were a woman, was not decided, much less examined. This was a weak case in Madras decision which was in any case strictly formal and anti-Quarin in approach.
The Bombay High Court In Rakhmabai v. Sitabai9 that a step mother as manager of a Joint Family consisting of her co-widow and minor step-son and a minor step daughter and had the power to resist the appointment of a guardian of the property of the step-son. She was the managing the estate and her authority should not, it was urged be undermined by such an appointment. The learned court said that the proper course was to appoint a guardian for the coparcenery Property. A widow could not be a manager of Joint Family Property. The case of Seethabai was agreed with.
The Orissa High Court- In Maguni Padhano v. Lokananidhi Lingaraj10, it was held that a mother, whose husband is alive, cannot be a manager. She might indeed act as guardian of her son, if her husband was dead and perhaps as defacto guardian. But as manager she had no powers whatever. Laxmi Narayan’s case was not followed. The Principle that a woman could be a manager was decisively rejected.
The Patna High Court In Sheogulam v. Kishun Chaudhari11, the court denied that a mother of a minor son, during the long absence of her husband , might act as karta and incur debts for family purposes. All such debts would not be binding upon the family. The case of Maguni was relied upon.
On the surface it might seem that Madras has the best of it. But a further examination makes us hesitate. The natural desire that deserted mothers and widows should have ample powers to look after their minor son’s interest, acting for necessity or the benefit of the Family, has expressed itself, as things will, in an irregular way, seeing that it was frustrated in expressing itself in some quartes in a regular way.
Conclusion: Under the Shastric Law, a daughter on marriage ceases to be a member of the parental family, but the Amending Acts have changed her position, which is quite alien to Hindu patriarchal notions. Though her position as defacto manager was recognized when mothers acted as guardians of their minor sons after the death of their husbands, the dejure conferment of the right eluded her.
The law commission also has rightly observed that although the Hindu Succession Amendment Act, 2005 has conferred upon the daughter of a coparcener status but there is still a reluctance to making her a Karta. This seems to be patently unfair as women are proving themselves equal to any task.
Since they can act as coparcenaries then they must also be given the powers of Karta. The shastra is clear that in the absence of senior member a junior member (if he has reached the age of legal competence) may incur debts for the needs of the family, and in the absence of a male member a female member may do so. The Sanskritic texts empower women to act as Karta in instances like when the husband is away or missing or the son is yet to attain majority.
Equality for women is not just a matter of equity for the so-called weaker sex, but a measure of the modernity of Indian society and the pragmatic nature of our civilization.