Indian succession laws with apecial reference to the position of females: a model for South Africa

Abstract

South Africa's dual system of succession laws (the common law of succession and the customary law of succession) recently came under scrutiny in Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa 2005 1 SA 580 (CC) where the customary rule of male primogeniture, amongst others, was declared to be unconstitutional. The court developed the Intestate Succession Act 81 of 1987 and in effect unified the common and customaiy law of succession, with the imperative to develop the succession laws by means of legislative initiatives. Since the envisaged statute has not yet been enacted, it is appropriate to compare the legal position in other jurisdictions with that of South Africa. Legal academics tend to compare aspects of the South African legal system with European and American legal systems and incline to forget the value of other major legal systems, such as the legal systems of Asia. The history of South Africa shows remarkable similarities to that of India and, since the phenomenon of legal pluralism is particularly prevalent there, it would be worthwhile to compare the succession laws of India in order to determine whether something similar would benefit South Africa. Besides focusing on the succession laws of Hindus, Muslims and Jews in general in India, this article will concentrate on the legal position of women under the various succession laws in particular.