Spirit of the law – 23 May 2022


WOMEN`S right to inheritance is often galling for their male relatives in our patriarchal society. However, with cultural practices favouring them in every sphere, men can and do find a way around this `hurdle` without much difficulty. One tactic is to take advantage of many women`s lack of exposure to the world of business and their dependence on male relatives to interpret its fine print for them. Many a woman has thus been duped into signing away her property, only to realise too late that her trust has been betrayed. The Supreme Court has in a recent verdict addressed this loophole by ruling that to deprive an illiterate, purdah-observing woman of her property without professional or independent advice provided to her, or without making her understand the consequences of her action, was not sustainable in law. Consent, therefore, is not worth the paper it is written on until it is given freely with full awareness of its implications, which is how it should be. The case in question involved a gift deed of properties inherited by two sisters, both illiterate and purdah-observing, prepared fraudulently on blank paper through misrepresentation by their brother.

Legal protections do not amount to much without the will to apply them in the true spirit. The Prevention of Anti-Women Practices (Criminal Law Amendment) Act, 2011 added Section 498A to the Penal Code to criminalise the act of depriving women of their right to inheritance. Anyone found guilty of this crime is liable to imprisonment of between five to 10 years and/ or a Rslm fine. The apex court`s recent verdict takes into account the lived reality of many women who sign contracts involving their property. Further, it puts the onus of proof where it belongs on the individual who enters into a transaction with the purdah-observing or illiterate woman; it is for him `to establish that the said document was executed by her after mindfulness of the transaction`. However, there are other ways that women are deprived of their property.

These involve the full spectrum of family and communal pressures, underpinned by archaic notions of honour, to surrender what is theirs, or should rightfully be theirs, in favour of male relatives.

Resistance can invite physical violence, even a risk to life. For this to change, society needs to undergo a change in mindset whereby women are not mere appendages to the men in their family, but complete individuals in their own right.

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