STATIC AND PROGRESSIVE SOCIETY: A BRIEF ACCOUNT ON THE DEVELOPMENT OF PROPERTY RIGHTS OF WOMEN UNDER NEPALESE LAW

1.     Introduction :

1.1.  Background:

Sir Henry Maine focused primarily on the historical evolution of whole societies and what he claimed were the corresponding changes in the gross structure of the legal order. [1]First, he describes stages of legal evolution whereby old ideas are discarded in favor of modern legal norms. Second, he used comparative studies to determine what ideas all legal systems have in common. He found two types of societies: static and progressive. Static societies start with the personal law of the law-making ruler. In progressive societies, relationships are not based on status rather contracts order human relationships, and the right of persons to freely bargain for goods and services is respected as a legally enforceable norm of contract.[2]

Property rights of women, has always been an issue of debate under the legal system all around the globe. Women, in from a very early time, were not considered as a person liable to enter into a contract. Thus, the legal and social subordination of women led to deprive them own property of their own which later crystallized. However, the changes in the conception of people regarding gender based issues, the scenario is seen progressive where women are also treated as a competent party to enter into the contract and are made eligible to claim the parental property. Taking about Nepal, its legal system did not use to let women esp. daughters didn’t use to claim their parental property and in case she wanted her parental property, she needed to remain unmarried upto the age of 35. But the latter amendments in the Nepalese laws have made women equally eligible to attain their parental property. This aspect can be viewed in light of Henry Maine’s conception regarding static and progressive society.

1.2.  Objectives:

The objectives of this study are as follows:

a.     To study about the Henry Maine’s Conception about static and progressive society.

b.     To study the historical legal framework of property right of women under Nepalese laws .

c.     To study about the trend of the reformations in the legal framework of Nepal regarding property rights of women.

1.3.  Limitations:

The study consists of following limitations:

a.     Major focus of the study has been made the property rights of daughters in their parental property and inherited property.

b.     The study does not include any statistics about the specific topic.

1.4.  Methodology:

The researcher has entirely adopted the secondary sources of authority to conduct the research. It consists of the literature review, case law review as well as the report reviews relevant to the subject of study.

1.5.  Organization of Study:

The paper is organized into three chapters where the Chapter 1 deals about the general background of the study, its objectives, limitations and methodology of study. Chapter 2 consists of the concept of static and progressive societies as per Sir Henry Maine. It also consists of the historical evolution of Nepalese legal system in terms of the property rights of women in Nepal. Chapter 3 consists of the analysis of the study, conclusion and bibliography.

2.     Sir Henry Maine’s conception regarding static and progressive societies

Sir Henry James Sumner Maine’s theories about legal development identify successive stages which all progressive societies must pass. Each of these stages grow out of the one prior, and lays the groundwork for its own transformation into the next.

The evolution of law as per Maine lies in the early forms of jural conceptions. The most primitive jurisprudential stage is a legal system based on the judgments of kings. Since the pronouncement of kings are not connected to one another in any orderly sequence and they do not qualify as a true law, but are mere commands.

The second stage, which grows out of heroic kingship and then supplant it, is the dominion of aristocracies i.e. the council of chiefs. This tends to monopolize the knowledge of the laws, to have the exclusive possession o f the principles by which quarrels are decided. Out of aristocracy in turn grows the epoch of customary law and finally, codification. [3]

The Patriarchal Theory as stated by Maine stands upon the contention that the states evolves out of the family. The eldest male parent is absolutely supreme in his household. Society is organized not as a collection of individuals but an aggregation of families.

3.     Historical legal framework regarding the property rights of women in Nepal

The historical legal framework in Nepal was the direct reflection of the Hindu Society that is found to be greatly influenced by the religious scripts Like Manusmirities[4], Yagyabalkya, Naradsmiriti and so on till date. The status of women in ancient Hindu society  (before 2500 B.C.) was worse as they could be easily be bought and sold and even gambled as other property. In this regard, there was no point of property rights to the women those days. Some Sanskrit literatures have mentioned that the unmarried daughters could get the inherited property of their mothers.[5] But there was the concept of Stridhana (the private property of the women) was prevalent. The ornaments, jewellery, apparel etc. were regarded as the women’s private property. The gifts given by the father, mother, brother, husband and other persons at the time of marriage could be regarded as the women’s’ individual property.[6]

To be specific in the context of Nepalese legal provisions,  Muluki Ain 1910 B.S. and Muluki Ain 2020 B.S. and the provisions related to the property right of women should be taken into an account.

3.1.  Muluki Ain 1910 B.S.:

The Muluki Ain 1910 was drafted when King Surendra Bir Bikram Shah was the King of Nepal. But it must be noted that Nepal at that time was completely under the Rana Regime and the king used to be regarded as the figurehead only. They used to rule over Nepal by the name of King.[7]Junga Bahadur Rana, the first and the most powerful Rana Prime Minister of Nepal after visiting Great Britain experienced the essence of a common type of law to prevail all over Nepal and the effort of the codification of The Muluki Ain was started. The Muluki Ain 1910 was the first ever codified common law so far found in the history of Nepal. It has been influenced by Indian Sub-Continent’s basic norms developed from two schools namely Mitakshara which is relatively conservative in gender issue[8] and also regards women as the materials that can be sold and used in the way men like.  It was implemented from Poush 7, 1910 B.S. That Muluki Ain was strict outcome of the Hindu Dharmasasthras such as Manu Smiriti, YagyaBalkya, Smirities, Bhrihaspati, Vedas etc. It has 163 sections and was made in four parts. Later it was widely amended by Bir Shamsher in 1942 and was overall amended 12 times.

As already mentioned that the Muluki Ain1910 had a discriminatory provision in each and every aspect, there’s no question of property rights of daughters in their parental property. However in Clause, it is written that daughters who is below the age 35 and unmarried would get the wedding expenses[9] during the partition of her parental property. And in clause 15 on the chapter of partition, it is also mentioned that if an unmarried daughter stays in father’s house for more than 35 years of age, could get an equal share of her parental property as her brothers. But if the women had illicit relation(Poila Janu) after getting the property, had no right to claim on that and the ownership goes to her brothers.

3.1.1.     Womens’ Right of Inheritance:

The daughter’s right of inheritance is ensured by Junga Bahadur Rana by issuing ordinances with an effect to provide deceased person’s property to his/her daughters if she had been given bequest.[10] And also in regard of the married daughters mentioned in clause 2 of the Chapter 26 of Inheritance, she is eligible to get the inherited property of her parents only if all the coparceners and brothers are absent. However, the clause 3 of the same section explains that in the case of unmarried daughters are present, the wedding expenses of each daughters should be deducted and the remaining property should be distributed equally among all the sisters. The daughters are not compelled to take the inherited property but if they take, were obliged to pay the debt of their parents and also perform the funeral rituals.[11]

3.2.  Muluki Ain 2020 B.S. :

The Muluki Ain 1910 was experienced with many discriminating acts. By the establishment of democracy in Nepal in 2007 B.S. the people were much concerned about the concept of equality among all irrespective of the sex, caste, religions etc. The Constitution of Nepal 2004 B.S was practised and also the Interim Constitution of Nepal 2007 had been implemented in Nepal. So at that situation, the Ranas were abolished to reign over Nepal. And also, the Muluki Ain of 1910 couldn’t address the social and religious changes, couldn’t behold the necessity of rule of law, and couldn’t forecast the future favorability. So King Mahendra in 2020 B.S. announced to formulate new country code so as to maintain a sound justice giving process throughout the country. It consists of 4 sections and 19 clauses. It has been amended for 12 times till date so as to cope with the changing society in the aspect of crimes, gender based equality, property matters while the eleventh amendment of 2058 has considerably tried to avoid the discrimination between male and female in their property rights.

3.2.1.     Daughter’s right on partition of parental property:

Talking about the property rights of daughters in this country code, since it was formulated, there was no such provision. The father, mother, husband, wife and their sons were only eligible for their parental property. However, due to the increasing voice against the gender quality in property distribution, now the provision under the Chapter 13 of Partition, daughters are provided with equal eligibility in parental property on the basis of the number of alive bodies.[12] However, the sub-clause of the same clause has mentioned that the daughters who are already married during the formulation of such act, cannot claim for their parental property.

And also in the case of property rights of adopted daughter, she is equally liable for the property of the parents who adopt her. [13] But before the Eleventh Amendment of Muluki Ain 2058, it was written that the adopted daughters would get the rights equivalent to the daughters from her parents. However, the property rights were not given but was given only the marriage

In the 10 no. of same section explains that the couple who leave their children helpless with the consent of both are identified, their entire property goes to the person who adopt the child. And in the case only one of the couple had consent on that, his/her property along with the property of the child goes to the person who adopt the child.

3.2.2.     Womens’  right of inheritance:

The Muluki Ain 2020 B.S. has also defined the daughters’ rights on inherited property. However, the amendment on 2063 has played considerable role maintaining the gender equality. On the Section 13 of Inheritance, No 2. has the provision of the equal right for unmarried daughters to claim on the inherited property of their parents. And there is also provision on the same number that in the case if the deceased person doesn’t have husband, wife, sons, unmarried daughters, daughter-in-law, even his/her married daughters as well as her unmarried daughters can claim on the deceased person’s property.[14] In the case of clause 3 of the same section, it states that even the married daughters of the parents who are not cared by their sons, unmarried daughters and other coparceners if take care of them, could get the inherited property.

4.     Analysis

The scenario of development in the concept of property rights of women in Nepal in a progressive ways satisfies to some extent the propositions laid down by Sir Henry Maine.  This is because if we take consideration on the sequence of development of such concept, we can find a chain of progression.  The static society which lasted for a long time under the influence of ruler and later the religion did not permit women to be the heir of their parental property is found to have been flexible in different timeframes. And up to date, the legal framework in Nepal has been such that both male and female have been entitled a constitutional right for being entitled to their parental property in a equal manner. Similarly women can easily sell and use their property as their will. In that sense, the society has been progressive one in terms of gender equality.  As very rightly mentioned by Maine that the movement of society from status to contract is accomplished though legal fiction, the application of equity principles and by the passage of legislation, Nepalese legal system in this aspect has come across these circumstances. For example, Maine gives an scope of an intervention by courts to nullify the ill effects of fundamentally unfair provisions. Examples can be taken in Nepal where the Judiciary took actions to break the crystallized norm of economic subordination of women in its progressive decisions. In the case of Meera Kumari Dhungana v. HMG, Ministry of Law, Justice and Parliamentary Affairs[15], the applicant demanded fo the cancellation of section 16 of the Chapter of Partition of Property of Muluki Ain considering it gender discriminatory as it had forbidden women to claim their parental property. The court opined that the historical evolution of the conception of partition of parental property has its base upon the traditional values of Nepalese society and it it always likely that spontaneous changes in the existing laws create positive impact upon its practice. However, the Supreme Court directed for the promulgation of appropriate draft by the parliament.

In Nepal, the cancellation of Muluki Ain 1910 B.S. followed by the pronouncement of Muluki Ain 2020 B.S. bringing considerable amendments in different timeframes in order to maintain gender equality. Nepal has also signed without any reservations the United Nation Convention of Elimination of all forms of Discriminations Against Women (CEDAW, also known as Beijing Decision 1995 ) which advocates the equal social-economic rights for women.

Conclusion

Henry Maine’s conception regarding static and progressive societies can be tested in terms of sequence of changes in the conception of the property rights of women under Nepalese Laws. The present scenario of the legal framework under Nepalese Laws, property rights of daughter has been ensured as equal as that of sons. The Amendment made in the Muluki Ain in 2058 B.S. in order to maintain gender equality has brought substantial changes in the conception of right to parental property of women. The Nepalese Legal System which favored patriarchy and that did not used to consider women to any of the stakeholder upon the property slowly turned flexible and started considering the gifts to the women as their property. Later, the conception of inherited property was accepted but the parental property was not shared among the daughters.  However, the changes in the political system followed by Nepal’s ratification of several international treaties and conventions regarding the elimination of gender based discriminations and human rights made it possible that the women were entitled to equal property rights.  

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[1] Elliot, E. Donald, “The Evolutionary Tradition in Jurisprudence” (1985), Yale Law Journal. Faculty Scholarship Series. Paper2194, 50

[2] Albert P. Melone, Allan Karnes, The American Legal System; Foundations, Processes, and Norms, Roxbury Publishing Company, Los Angeles, California, 11

[3] Elliot, E. Donald, “The Evolutionary Tradition in Jurisprudence” (1985), Yale Law Journal. Faculty Scholarship Series. Paper2194,44

[4] As regards women’s property rights, the statements in Manusmiriti appears to e contradictory. At one place manu prescribes property rights of women and on the other hand, he declares that women cannot have any property.  The sources of property of women, according to Manu, is the donations and gifts by the groom and the family members at the time of marriage.

[5] Dr. Devi Prasad Kandel, Property rights of women in Nepal, Ratna Pustak Bhandar, p 14

[6] The six varieties of StriDhana were coded in the Manusmiriti, Supranote 1, p 12

[7] The Ranas used to decide in the state affairs in the name of Panjapatra(the sign of authority granted by the king) which they had obtained after the Kot Parba 1903 B.S.

[8] The Mitakshara and Dayabhaga are the two schools in the Indian Subcontinent which thinks that daughters and children have no right to claim on the property of father. However, the latter school is not so strict in these matters.

[9] The wedding expenses is the 10% of the total parental property and it was a must to be separated for each sons and daughters for their marriage.

[10] The clause no 1 on the chapter 23 of  Inheritance. However there must be absence of her brothers and the coparceners within three generations. But if the coparceners other than sons exist, even thought the bequest was in favor of daughter 50% of the property must be given to the coparceners.

[11] The clause 4 of the chapter 23 of Partition

[12] The Eleventh Amendment of Muluki Ain 2058 has made such provision under clause 1.

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[14] In the No. 3 of the same section, it is stated that in the case if any person is not cared by his/her unmarried daughter and is staying with his/her married daughter and is cared by them, the inherited property goes to the person who cares, not the unmarried daughters.

[15] Writ No. 3392 of the Year 2052