Any Attempt To Have A Uniform Civil Code Must Be Women Centric While Not Being Disadvantageous To Other Genders: Justice Nagarathna

The Supreme Court judge was speaking on 'WOMEN'S RIGHTS TO PROPERTY : ROAD TO EMPOWERMENT' at the Jharkhand Judicial Academy.

Justice Nagarathna expressed that by virtue of the amendment made to section 6 of the 1956 Hindu Succession Act in 2005, "we have all experienced a docket explosion at all levels from the civil court right up to the Supreme Court. That is a good sign. But at the same time, I would advise women that they must settle wherever a settlement is possible in the cases either through mediation or through Lok Adalat so that the family relationship is restored"

"Imagine a brother getting a notice through the court when a sister has filed a case. Nothing wrong with it. But what happens to the family relationship of the brother and a sister? Therefore while rights are being given to women, at the same time I must advise women to see that there is a settlement of the property. After all, it is the property of the ancestors or the self acquired property of the father. It is not their self acquired property. It is a matter of inheritance, therefore, it is necessary that the family relationship is restored, even when there is a suit filed, at the earliest, by some kind of a give-and-take between the brothers and sisters in the family", she continued.

"It is equally important that women strive to keep intact the finer feminine sensibilities of kindness and care. Independence of women, financial or otherwise, must not have an implication on the more domestic aspects of a women's life, i.e., marriage and family. In my opinion, women have tremendous biological potential for compassion, forgiveness and sensitivity and the same must be kept alive always", she stressed.

Justice Nagarathna added that the judge has said this all in the context of gender parity and for restoration of the unit of society which is something very unique to India as compared to anywhere else in the world.

At the same time, she opined, "It is fairly clear that evolution of the property rights of women in India has undergone reformation to overcome systematic discrimination against women. While the theme of gender parity has been the centrepiece of contemporary inheritance laws, empirical literature on women's inheritance rights suggests that significant gender bias persists despite reforms, disabling women, particularly rural women, to achieve...the real objective of a legal regulation should be to change social and gender attitudes. Such attitudinal changes are essential which are based on an understanding that the changes in the law targeted to provide enhanced rights to women were demanded by the societal changes. Male coparceners should have an enlightened attitude which recognises the needs and interests and rights of their female counterparts. Sensitisation to bring about such attitudinal changes is the need of the hour"

Justice Nagarathna said that, "Male coparceners should invite their sisters to have a share in the property". "Probably the sisters will not ask for that actual share, they will have a concern for their brothers and they may say that let us have a give-and-take and divide the father's or mother's property in the best possible means. That is one way of avoiding litigation and disruption of family life"

"In my view, women's empowerment has five major facets- securing a woman's sense of self-worth, woman's right to determine the right to choice of action, women's right to have access to opportunities in every field of activity and resources including in ownership of land and property, a woman's right to have the power to control her life both within and outside the home of course subject to her duties to her family and as a citizen of the nation, and finally, her ability to influence the direction of social change so as to create a more just and economic order both nationally and internationally...The narrative of women's empowerment would be incomplete without referring to the aspect of her right to property, including economic power in a broad sense of the term which includes the right to livelihood also. Women's access to property is a more crucial determinant of an equitable gender pattern of wealth distribution, household bargaining power and decision making. When we think of economic empowerment, it is mostly in the sense of inheritance of property, at least so far as Indian women are concerned, for a large number of Indian women do not have separate property as such. Therefore, laws and policies that seek to improve the position of women in matters of right to property and inheritance have been advocated and endorsed in addition to those which seek to improve economic opportunities for women", Justice Nagarathna explained.

She discussed that Women's property rights in India are governed by personal laws, both uncodified and codified, but it is religion specific, and that "distinct personal laws are based on different religious groups and sects and such a plurality is a facet of India's multiculturalism"- "However, the law in this regard must be studied and applied in light of the culture of the Constitution, after duly recognising the close interface between personal laws and the Constitution of India. Talking of the Constitution of India, we are all reminded of article 44 which speaks of uniform civil code. It is an ideal to be achieved because our country which comprises persons belonging to different religions, communities, ethnic and tribal groups confronts complexities of great magnitude. While much is to be achieved in this regard as article 44 is a DPSP, its absence cannot be a reason to escape the constitutional discipline anchored in part three of the Constitution, particularly in articles 14 and 15 on the aspects of gender equality. Article 15(3) of the Constitution in fact permits special rights and protections to be extended to women in order to secure that they are protected from any form of manifestation of discrimination. Such constitutional protection and affirmative action ought to be borne in mind while enacting, applying or interpreting any law which has implications on the rights of women, even when such laws are based on the personal law system"

Justice Nagarathna added, "Any attempt to have a uniform civil code must ensure that it is women centric while not being disadvantageous to other genders. That would bring about gender parity in Indian society. I would always advocate gender parity and not just being women centric. Of course, women empowerment is necessary but at the end of the road, we should have gender parity and not just have Women centric laws. Gender parity is most important in a healthy society"

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