Hindu Family Under Siege : Understanding through the SC Verdict on Property Rights to Invalid Children

Recently, a three-judge bench of the Supreme Court (SC) of India consisting of the Chief Justice of India (CJI) DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra gave a verdict in the Revanasiddappa and Anr v. Mallikarjun and Ors case that pertains to Hindu Marriage Act and Hindu Succession Act. Such cases should concern any conscientious Hindu as after losing hold of much of their institutional power in the last thousand years of colonization, i.e., secular state, desecration and government control of temples, atrocity literature against Hindu community ( varṇāśrama and jāti system), etc. the institution of family is the last bastion still standing. This last fort of Hindu civilization is now under siege. Institutions preserve and systematically propagate knowledge systems. Unfortunately, this case has missed the critical scrutiny of Hindu intellectuals despite the popular perception that Hindu awareness is on the ascendency. Let us understand the case at hand before analyzing the impacts.

The above bench of SC of India under CJI DY Chandrachud “ruled that children born out of void or voidable marriages can claim a right in their parents’ ancestral property in joint Hindu families following the Mitakshara system of law.”¹ One needs to understand a few legal terms here- void and voidable marriages under Hindu law, ancestral property, Hindu Undivided Family, Mitakshara law, and succession.

• Hindu law refers to laws governing Hindu marriage, divorce, succession and adoption.
• The Mitakshara system of law is legally followed in India except in West Bengal and Assam, where the Dayabhaga system is followed.
• Void marriages, under the Hindu Marriage Act, are those where a person marrying has a living spouse, the marriage ceremony is not conducted (legally or socially), the couple are sapindas (except in cases where local customs and usage allow it) or prohibited to be in the marriage relationship (for example siblings, except where custom and usage allows it), a partner marries when an appeal for his divorce is still pending and etc.

The void marriages mainly restrict bigamy (polygamy and polyandry) which is prohibited under the Hindu Marriage Act, and gives legal sanction to a few Hindu customs while protecting regional variations.

• Voidable marriages, under the Hindu Marriage Act, are those marriages that can be nullified by a decree of a court if a partner petitions. To understand simply, without getting to the complex legality involved, the grounds for such a nullification decree could be one of the partners was of unsound mind or suffering from a mental disorder at the time of marriage and hence incapable of consenting to marriage, impotency of a partner, being pregnant at the time of marriage by another male, etc.
• Hindu Undivided Family (HUF) - It refers to a group of people lineally descended from a common ancestor, including their wives.
• Ancestral property, as per Hindu law, refers to properties that have been inherited from forefathers beyond three generations. This means if a person inherits land or property from his grandfather (and it’s not a self-acquired property of the grandfather), it would be classified as ancestral.

As per Hindu Law, every member of the Hindu Undivided Family enjoys coparcenary rights. Simply, all persons including wives and daughters have legal rights over ancestral property by birth or marriage in HUF.

Returning to the Supreme Court’s verdict. The status quo before the verdict was

1. Children born out of void or voidable marriages would have no share in ancestral property as they are legally invalid children of the Hindu Undivided Family.
2. However, the Hindu Succession Act grants them an equal share in only the self-acquired properties of their invalid parents. It considers them legitimate heirs for this purpose only. This has been done through successive amendments and judicial pronouncements.

The three-judge bench, led by CJI DY Chandrachud, has opined that since invalid children are considered legitimate heirs to self-acquired property of invalid parents, they would also have a share in the ancestral property from their parents (invalid) share. But they wouldn’t have coparcenary rights, i.e., they don’t have rights on ancestral property by birth. That would have impinged upon the rights of other members of HUF, let’s say uncles, aunts, cousins, step-brothers, step-sisters, and step-father or step-mother.

It’s important to note, that the word children does not mean minors here, it just refers to biological progeny who could be majors or minors.

This sounds like a fantastic progressive liberal verdict. It gives ancestral property rights to children born from invalid marriages. For, what is the mistake of the children for being invalid legally! From a conservative perspective, the mistake, if any, lies with the biological parents for their uncontrolled desires.

But a Hindu mind is beyond the binaries of progressive liberals or conservatives. Let’s explore.

• The verdict says that invalid children from void and voidable marriages are not coparcenary in the Hindu Undivided Family. They don’t have rights over ancestral property by birth as that would have made the marriage of their invalid parents legally valid. This would have contradicted a basic provision of the Hindu Marriage Act 1955, i.e., monogamy, since coparcenary rights can only be acquired through valid marriages and births from valid marriages.

The invalid children only have rights over their invalid parent’s share. They are now legitimate heirs of invalid, a.k.a. illegitimate marriages. So much for the dignity of an individual!

• But let’s say they now have rights only on their parent’s share. After the death of their invalid parent, they will get their share from their parent’s portion. But wouldn’t that impinge upon the property share of their step-brothers and sisters? However, this contention can be set aside as they already possess legitimacy under the Hindu Succession Act.
• Now let’s say a man has a girl-child from his legitimate marriage. He also has a male child from a void marriage. Now after his death, his share of ancestral property would be divided 50-50 between both. In this scenario, aren’t we impinging upon women’s property rights?

As per the feminist narrative, daughters of Hindu families were oppressed and suppressed for millennia, and only recently did they get an equal share in their parents’ properties. But this argument doesn’t hold ground since at an overall society level (all Hindu families collectively in this case) women’s rights may not be impinged as the probability of a child being male or female is equal. But given the new woke narrative that there is no absolute concept of gender, mathematics would even fail to predict which category of rights is upheld or takes precedence objectively.

• If the state has given rights to invalid children, why shouldn’t it give rights to invalid spouses, especially invalid wives? Surely this could be done in a similar way without granting coparcenary rights. Otherwise, as stated above, granting this to invalid spouses would go against the monogamy of the Hindu law. Anyways, just granting property share would champion the feminist argument of women’s rights.

But there is a catch here - CONSENT. The two adults must have entered into a sexual union with consent even though marriage is void. There is no state of innocence here, unlike the invalid children. Assuming consent takes precedence over women’s rights, this argument of granting property rights to an invalid wife could be dismissed. In cases of deceit, there are other legal avenues, such as pursuing charges for a false promise of marriage, kidnapping, or cheating. Mind you these are criminal laws of the state and they are ideally stricter in terms of punishment and retribution. But who cares about the false cases and the corresponding undertrials, abysmally low conviction rates, and the famous Sunny Deol dialogue from the Bollywood ‘tarik pe tarik’ referring to the extremely slow judicial system of India and the backlog of cases etc.!

But we talked about the Hindu mind, and a Hindu mind is never satisfied only with outer forms. It goes to the depth of things, dispassionately. Rather than succumbing to socio-political power structures, it employs power to serve knowledge, in its purest and highest form, even in the everyday aspects of life.

The purpose of putting different counterarguments was not to show that the verdict of the SC of India under CJI DY Chandrachud was incorrect and the status quo was right. The status quo was equally concerning, if not more.

Hindu law is now caught in a cobweb of rights-based framework and bureaucratic rationality- rules and regulations. How can various rights be reconciled when they come into conflict? For this, a system should have a stable core, an all-encompassing principle that orders and harmonizes these clashes. Instead, we see new so-called progressive rights are created with mutations of critical theories- the duality of oppressed and oppressor. Men oppress women, families oppress individuals, parents oppress children, binary people oppress non-binaries, and so on. Every oppressed gets a right. To address these conflicting rights, the concept of intersectionality arises, identifying those most oppressed and affording them a broader array of rights. In the above case for the time period, the rights of innocence, read oppressed, now rests with the invalid children.

But a Hindu mind sees something else here. It observes all these as power struggles. The more institutions of the people, like family, are weakened the greater control the state has over you. The ideology of individualism is not liberating but rather a dependency on the deep state. The current hierarchies of rights and the surrounding bureaucratic legal frameworks are subject to change, fluid. They can interchange and be mobile tomorrow with freshly minted ideas of progressiveness.

For example, adultery was decriminalized by the SC of India² citing a man is not the owner of his wife. This draws from the feminist ideology that the sexual freedom of women is a measure of women’s emancipation and society’s progressive status. Now what stops from granting coparcenary rights to an invalid wife from void marriage? What prevents the incorporation of bigamy, including polyandry and polygamy, into Hindu law? Or a stop-gap measure of having a single valid spouse and multiple invalid spouses with cris-cross of rights? In fact, if progressiveness is the yardstick then these are definitely future realities.

As stated, all these are power struggles to destroy the evolution of humans through institutions of family. You can read the previous two articles to understand the idea and institution of Hindu marriage.³ This is not a conspiracy of a single man or institution. When power doesn’t serve its true masters- knowledge in its pure and highest form, this is inevitable. It veers off course, leading to the breakdown of societal institutions and eventually humans as well.

What happens when power is cut off from this knowledge or wisdom and serves ideologies? It loses touch with the realities of human nature and society. It becomes a utopia. While the verdict reflects a keen legal analysis, is this workable? Let’s say tomorrow a man dies with an invalid child. Do you think the valid children of the man will just hand the corresponding ancestral property share to the invalid child, amicably? This is not to say the ordinary nature of humans is either evil or pure. But definitely, men and women are not machines. Nor is the Hindu society ordered with valid and void children and families. The verdict will lead to more civil suits, and litigations in a completely dysfunctional judicial system of India and push towards more community hostilities. Who benefits? The revenue administration and the police, lawyers, and so on- from every echelon of the society.

When power lacks wisdom, it becomes disconnected from the biological, psychological, and societal realities. It creates a disintegrating society and we call this corruption and blame government officials and judicial systems, as if they fall from the sky.

Such a power inevitably leads to totalitarianism. It has scant regard for contextual intelligence. Our rights-based framework is moving towards a totalitarian system. Progressiveness is becoming an intolerant ideology.

Whereas, Hindu law is dharma-driven. Dharma, contrary to some interpretations, isn’t sectarian. It is universal in its principles and wide in its implementation. It draws its first principles from a stable core of wisdom. But most importantly, it is contextual and harmonizing. It is based on basic human realities. Therefore, it is integral. A basic primer to understanding this is the integral yoga idea of svabhāva and svadharma, a person’s true inner nature and right law of action, respectively. This integrates the highest universal principle into contextual application thus harmonizing various conflicting things in the society. Its contextual awareness doesn’t create a utopia or totalitarian system.

Sri Aurobindo says in this regard- there is “one common universal Nature, but in each grade, form, energy, genus, species, individual creature she follows out a major Idea and minor ideas and principles of constant and complex variation that found both the permanent dharma of each and its temporary dharmas.”⁴ This flexibility of the universal nature or idea to transform its principle into different contexts, for example the institution of family in our case, into ideas and variations protects from fundamentalism, utopia or totalitarianism creeping into it. The microcosm mirrors the macrocosm, meaning the individual entities reflect the broader universe, maintaining a consistent foundational idea amidst diverse implementations. Hence there is replication of a stable core, despite the multiplicity of ideas in the society.

A Hindu law from this perspective is not reactionary or conservative, even, as that would strip off its harmonizing capability. Nor is it docile. It doesn’t ignore the sins and oppressions in the society. The solution is integral to various realities of humans and society instead of what it is offered by the present state. Dharma is a wisdom embedded system. It doesn’t ask for taking away an invalid child’s rights. Nor does it formulate solutions as the current verdict does.

An ideology that believes in a blank slate of mind at birth and a verdict drawing its essence from duality of mind and matter will only look at biological parents for owning up responsibility. So, the invalid children are slated to get a share from their biological parent’s portion only. This unstable scheme of things can be turned down any day with new ‘progressive’ theories of oppression, and then the innocence of invalid child would lose its primary status in intersectionality.

A Hindu mind sees oneness in multiplicity. Therefore, Hindu society or tribal societies, had a social fatherhood concept. A child doesn’t only have a biological father but also a social father(s), ritual initiation father(s), and so on. Perhaps those principles can solve this peculiar case of modern society. It is difficult for a modern mind to fathom the depth of such complex social structures, all drawing its essence from the spiritual principle of oneness.

In conclusion, today’s Hindu law is in disarray, and its intellectuals seem lost. Hindu law is now serving different ideologies- liberalism, conservatism, Marxism, feminism, wokeism, and so on. It is being kicked like a football by the power center(s). If there is anything Hindu in the Hindu law it is at least the word ‘Hindu’. Even this word may be replaced in the near future by the so-called flag bearers of Hindutva, given their fascination towards UCC (Uniform Civil Code) that it would not only solve internal issues of Hindu laws but also external threats to Hindu society like demographic change. Would the slumber end?

References:

1. Child of void/voidable marriage has right to parents’ ancestral property in Hindu joint family: Supreme Court (barandbench.com)
2. Adultery law in India - Wikipedia
3. Marriage: The Institution of Sacrifice (brhat.in) Gṛhastha Āśrama - Marriage Part II (brhat.in)
4. Swabhava and Swadharma - CWSA - Essays on the Gita - The Incarnate Word