Harmonizing Hindu Personal Laws with Constitutional Principles: A Call for Reform

Mokarramus Shaklan: The Appellate Division judgment in Shishubar Dhali & Ors vs. Chitta Ranjan Mondol & Ors (18 SCOB [2023] AD 20)[1] marks a critical moment in the harmonization of Hindu personal laws with constitutional principles in Bangladesh. It reaffirms the constitutional mandate of gender equality and addresses the historical oppression faced by women under patriarchal interpretations of personal laws. However, this progressive interpretation highlights the urgent need for legislative reform to ensure fairness and justice for women in inheritance and other personal law matters.

The Judgment: Breaking the Shackles of Precedent: A Step Towards Equality

The case centered on the inheritance rights of a daughter’s daughter under the Dayabhaga School of Hindu Law, where the question arose whether the Stridhan (woman’s property) of a grandmother could lawfully devolve upon her granddaughter. The judgment, rooted in Jimuta Vahana’s Dayabhaga, held that daughters and sons inherit their mother’s Stridhan equally and absolutely.

It rejected outdated patriarchal views that excluded daughters’ daughters from inheritance and relied on constitutional guarantees of equality before the law (Article 27) and non-discrimination based on sex (Article 28).By emphasizing the principle of equality within the Dayabhaga framework, the court exposed the patriarchal distortion of Hindu law over the past century.

The judgment cited contemporary legal scholars like D.F. Mulla, Gooroodass Banerjee, and Golap Sastri, who have long argued that women’s property (Stridhan) should be inheritable by daughters’ daughters. These experts highlighted that Stridhan was meant to grant women absolute ownership, free from male control.

The court recognized the Privy Council’s judgment in Sheo Shankar Lal(1903)as per incuriam, arguing that it misinterpreted Dayabhaga law and failed to uphold the principle of equality which denied women equal rights to Stridhan property for last 110 years. By rejecting this colonial-era decision, the court reclaimed Hindu law from its patriarchal colonial legacy.

The Need for Legislative Reform

Even while the decision is a big start in the right direction, systematic discrimination against women under Hindu personal laws cannot be addressed by judicial interventions alone. To ensure that personal laws are in line with constitutional aspirations, legislative reform is necessary to codify just principles of inheritance and property rights. Hindu personal rules have historically disenfranchised women by recognizing them as inferior to males in terms of inheritance and property, especially under the Dayabhaga system.

Inequality has been sustained by the frequent denial of the proper portion to daughters, widows, and other female heirs. Personal laws that support gender discrimination go counter to the equality principles of the Constitution, which leads to a constitutional conflict. Courts must frequently resolve these disputes in the absence of established equitable inheritance rights, which results in ambiguity and contradictory interpretations.

Furthermore, women’s socioeconomic empowerment depends on their ability to inherit and own property. The essential need for comprehensive legal reforms is highlighted by the fact that denying women equal rights in inheritance perpetuates poverty, reliance, and oppressive susceptibility.

Recommendations for Reform

To harmonize Hindu personal laws with constitutional principles and safeguard women’s rights, significant adjustments are required. First, inheritance rules must be formalized in a comprehensive Hindu Inheritance Act that ensures equal rights for daughters and other female heirs while eliminating obsolete conceptions such as the “limited estate” in Stridhan.

Second, gender-neutral vocabulary should be used to guarantee that terms like “heir” and “successor” are equally applicable to men and women. Third, public awareness efforts, legal help, and engagement with civil society should enable women to use their inheritance rights.

Fourth, judicial training programs are critical for ensuring uniform and equitable interpretation of personal laws. When combined, these changes will strengthen constitutional principles, empower women in Hindu personal law cases, and provide a more just judicial system.

End Note

The decision in Shishubar Dhali & Ors vs. Chitta Ranjan Mondol & Ors is a ray of light for gender justice, but it is only the beginning. For too long, Hindu personal rules have been used to subjugate women, denying them their proper place in society. It is time for Bangladesh to implement substantial legal changes that reflect the Constitution’s promise of equality and justice.

By codifying fair inheritance rules, eliminating discriminatory practices, and empowering women via education and enforcement, we may guarantee that Hindu personal laws adapt to meet the demands of a just and contemporary society. Let this decision spark a larger campaign for change, addressing not only inheritance, but other areas where personal laws promote inequality and tyranny.

It is not just a legal necessity—it is a moral imperative.

[1]https://www.supremecourt.gov.bd/resources/bulletin/18/AD%203%20Borhanuddin%20Sir%20J.pdf

The Writer is an Advocate, Supreme Court of Bangladesh. E-mail: m_shaklan@yahoo.com