Gender-based discrimination or scope for it abounds in Goa’s Mundkars (Protection from Eviction) Act, 1975, in the way in which it is drafted. Either the provisions itself are outright discriminatory or the law is so worded that it provides scope for gender skewed interpretation. This, by a society which is steeped in a patriarchal mindset, reflected also in its highly placed individuals. The Goa Mundkars Act is even regressing from Goa’s family laws, according to which sons and daughters should have equal rights to parental property.
Take for instance, the provision in the law as to who constitutes a member of the family of a mundkar. Section 2 of the Goa Mundkars Act defines “member of the family” as meaning in relation to a mundkar who is an individual, his spouse, son, unmarried daughter, and includes father, mother, grandson, widowed daughter, widowed granddaughter, solely dependent on the mundkar for maintenance. How and why is there an assumption that a daughter goes or should go to her husband’s house after marriage? Many today do not. Is it not a regression from the Family Laws of Goa, which do not have such an assumption?
The Constitution of India clearly stipulates through the scheme of its provisions, that any law passed has to meet the test of the fundamental right to equality and non-discrimination and that in any event there cannot be a regression of rights. India is after all a signatory to the International Covenant for Economic Social and Cultural Rights which reinforces the concept of progressive realization of rights. This means that if fundamental rights already stand embodied in law, you cannot subsequently have laws which provide for retraction of those rights.
But thereby hangs another tale. The Government could well claim that there is no discrimination or regression because this definition is bad, no doubt, but it does not divest anybody of any rights since it is only a definition and in the body of the law which is providing for mundkarial rights, there is no provision that discriminates and there is no reference to the word family. In this writer’s opinion, there is indeed no such provision with reference to the word ‘family’. But why have such a definition in the first place?
And then how does one interpret the section 3 which provides that the rights of a mundkar shall be heritable and shall not be transferable. The Mundkar legislation is a protective legislation. It is meant to protect the rights of mundkars vis-a-vis bhatkars, but in the garb of that protection, it cannot take on another agenda of discriminating between sons and daughters or between daughters and married daughters, and stating that married daughters shall have no rights. Or for that matter it cannot determine heritability of rights. That is not the scope of a mundkarial legislation.
Therefore when the law says the mundkarial rights are heritable, it clearly means that on the point of heritability, the family laws shall apply. However, as earlier mentioned, patriarchal mindsets fail to see this. If residence be the criteria, since it is not owned property, what really happens with married daughters who are staying at their parent’s place and with their parents? And what happens when a mundkar’s sons are not staying with their parents?
The definition of family in the Mundkars Act, if that is being applied, includes a widowed daughter. In that case, does it mean that once the daughter is widowed, she can claim a share of the mundkarship of her father? How does this speak to the principle that there has to be certainty of rights of the parties who are already vested with those rights? Also, if a mundkar has no heirs in the category that comes under the definition of mundkar, does that mean that the property will revert back to the landlord or to the State? Obviously the law cannot have such absurd consequences.
It only goes to re-emphasize that inheritance rights (whether they be ownership rights or mundkarial or tenancy rights) are to be determined by the family laws, and the family laws do not limit the inheritance rights to owned properties alone. The interests of the parents are transferred to the children. Since the rights are not transferable, the High Court has gone as far as deciding that mundkarial property cannot be transferred by will to the son-in-law. But that is where it appears to have stopped, to one’s knowledge, and there is need to revisit this law from the point of view of equality, non-discrimination (and, if need be, residence), so that the systems can get out of this quagmire of misinterpretation.
The Bombay High Court has deliberated on the point of maintainability of provisions in law that excludes married daughters. The point for determination was whether the exclusion of a married daughter from the expression ‘family’ for being entitled to be considered for grant of retail kerosene licence under Government Resolution of Maharashtra dated 29th February, 2004, can be said to be legal and valid. The Court clearly observed that the “marriage of a daughter who is otherwise a legal representative of a licence holder cannot be held to her disadvantage in the matter of seeking transfer of licence in her name on the death of the licence holder….the exclusion of married daughter from the purview of the expression family is not only violative of Article 15, but the same also infringes the rights guaranteed by Article 19(1) (g) of the Constitution. The High Court held that the said Government Resolutions and Circulars, to the extent that they exclude a married daughter from being considered a member of the family of a deceased retail licence holder are violative of the provisions of equality, non-discrimination and right to practice any profession or to carry on any occupation, trade or business of one’s choice enshrined in the Constitution.
In view of several instances of mundkars’ daughters being deprived of their rights in the name of the Goa Mundkars Act, will the Honourable High Court of Bombay step in to clarify these discrepancies in interpretation of the Goa Mundkars Act and ensure that interpretations are Constitution of India-compliant by striking down any violative provisions in the Act?
(Albertina Almeida is a lawyer, human rights activist and an independent
researcher.)
