08 Oct Changing Perspective with Legal Provisions Right to Inheritance Etc
The 2011 amendments to the Jamaican Constitution explicitly stipulated a “right to freedom from discrimination on the basis of men or women”. The amendments also guaranteed a number of fundamental rights and freedoms, including the right to be free from inhuman or degrading treatment and torture, and the protection of the right to own property, receive education, choose and express oneself freely. Several court decisions rendered under colonial rule limited the reach of Stridhan Land. As mentioned earlier, Mitakshara had expanded the concept of stridhan to include all property acquired by a woman, including inheritance and partition. Although an inherited property is no longer considered Stridhana due to court decisions. Court decisions have gradually established a new legal concept: if a woman`s wealth is inherited from her male parents (father, husband, son) or from her female parents (mother, mother of mother, daughter), it is not her stridhan and passes to her husband or her father`s heirs. Women lost the ability to leave their Stridhan in wills or gifts and became a small estate. This case addressed the issues of exposure of vulnerable members of indigenous communities, particularly children, pregnant women and the elderly. On behalf of the Sawhoyamaxa indigenous community, a petition was filed against Paraguay, violating the right to a fair trial and legal protection, the right to property and the right to life, among other things. The petition concluded that these violations place children, pregnant women and the elderly in particularly vulnerable situations. The court found that Paraguay had violated Articles 1(1), 2, 3, 4(1), 8, 19, 21 and 25 of the American Convention on Human Rights.
The court ordered Paraguay to officially and physically transfer its traditional lands to the Sawhoyamaxa, establish a community development fund, pay intangible damages, provide the Sawhoyamaxa with basic necessities until their land is restored, provide the Sawhoyamaxa with the necessary communication tools to gain access to health authorities, and legislate at the national level, that create a mechanism for indigenous communities to reclaim their traditional lands. Women could not easily be deprived of their right to residence and maintenance after marriage, as divorce was not popular. In addition, in certain circumstances, such as cruelty or adultery, a woman has the right to demand separate residence and alimony, which is codified in the Hindu Women Separate Residence and Maintenance Act, 1946. This first case set a precedent whereby a married woman can own and transfer property independently of her husband. On appeal, the Supreme Court overturned the lower court`s decision refusing to own half an acre of land. Ms. Dlyon bought the property from a sheriff`s auction after it was taken over to pay off the owner`s debts. The Lamberts both argued that the former owner of the land had never acquired ownership of the property because he did not receive simple fees so that it could not be used to pay his debts, and that even if he had title, a married woman could not buy land. On the first point, the court concluded that even if the previous owner did not have perfect ownership of the land, this could still be achieved by the creditors.
On the second point, the court stated unequivocally that Ms. Dlyon had the right to purchase the property: “Under the Constitution, a [married woman`s] woman`s envelope may transfer property that she owns differently from her husband`s, and this fact leads to the conclusion that she can also negotiate and purchase property independently of her husband.” Until 1976, the rules on marriage and divorce were created in the Napoleonic Code. At that time, the right to manage property within a marriage belonged entirely to man. To ensure that women did not suffer the negative consequences of mismanagement by their spouses (i.e. debts), in the event of the dissolution of the marriage, they had the possibility to refuse or accept the division of assets and liabilities within a certain period of time. Silence meant that all matrimonial property rights and obligations were rejected. The Civil Code was amended from mid-1976 by the Act of 14 July 1976 to eliminate such discrimination, but contained transitional provisions requiring that the old provisions continue to apply in certain circumstances. In the present case (in which the women did not make a declaration within the old deadline), the Constitutional Court was asked whether the old provisions still applied to marriages concluded before the entry into force of the amendments and dissolved after that date. The first court held that the time limit no longer applied (since there was no basis for it, since men and women had acquired the same rights to administer matrimonial property in 1976), but successive appeals, leading to an appeal to the Belgian Supreme Court, were necessary to confirm this and repeal the relevant transitional provisions. However, despite the revolutionary provisions of the Hindu Succession Act of 1956, Hindu women continue to be deprived of property rights in general in Indian society.