(2004) JLP 50: 119-144
Karine Bates
Abstract
A broad definition of law manifests itself in various ways: it legitimates certain visions of social order, it determines relations between individuals and groups, and it manipulates cultural understandings and discourses over various concepts of rights - and duties. In India, the Hindu Succession Rights Act (HSA) of 1956 allows the wife and daughters, along with the sons of the deceased senior male, to claim an equal share in familial property. By giving inheritance rights to daughters and widows, not only to sons, this Act proposes a radically different organization of the ideal household, commonly referred to as the ‘Indian joint family’. The Act initiates a transformation of Hindu women’s status through their rights to property, which implies the transformation of women’s rights and duties in India. It also affects men’s access to natal property and modifies brother-sister relationships. Moreover, it redefines some religious categories. Firstly, under this Act the category ‘Hindu’ includes Hindu, Buddhist, Jain or Sikh. Secondly, it regulates the multiple religious and inheritance practices that still exist in different parts of India.
Like other national laws concerning the personal rights of the Hindu population, the HSA is the result of a compromise between different legal traditions such as various Hindu schools of law, British common law and the western philosophy underlying the concept of equality. The long debate over personal laws that took place in the 1950s led Indian legislators to envisage a new ‘social order’ in their laws, which would become potential agents of social change. But such legislative initiatives are not sufficient because their success depends on tribunals’ reactions and their capacity and desire to elaborate a new jurisprudence. In addition, innovative legal cases depend on people’s knowledge of the law and their desire to use it instead of other forms of conflict resolution. Drawing on observations made during an extensive fieldwork period in a rural community and case studies in Pune tribunals, this paper shows that women know that they have some rights to their fathers’ and husbands’ property. However, for various reasons, they do not see any advantage in claiming those rights. Women often find it difficult to reconcile claiming rights with their duties as daughters or daughters-in-law and the social restrictions associated with widowhood. This socio-legal ethnography of women’s succession rights in the state of Maharashtra contributes to the understanding of the dynamics of social cohesion in an environment where legal pluralism offers plural sources of identity definition and transformation.