Justice Claire L’Heureux-Dubé, the legendary judge of the Supreme Court of Canada, once said: “We are all students of this language called ‘equality.’” This profound statement serves as a reminder of the ongoing journey toward fairness and justice in all aspects of life.

Are men ready to listen?

The differing verdicts in petitions challenging Section 375 of the Indian Penal Code concerning consensual sex in marriage and its classification as marital rape, and the misuse of the wide powers of the Karta (manager) of a Hindu Undivided Family (HUF) highlights a broader issue. Beyond legal remedies, the crucial question is: are men in society prepared to engage in open conversations with the women in their families? Are they receptive to the needs of their sisters, daughters, wives and mothers? Empowering women begins with respect and the willingness to allow them to be decision-makers in key relationships. When women are heard and valued, the root causes of abusive relationships can be addressed.

The shift from coexistence to conflict

Earlier generations valued coexistence, sharing needs and building relationships. Today, however, courts are inundated with property disputes among legal heirs. This paradox challenges the ideal of the Indian joint family system. Financial feuds often lead to prolonged battles in court, but in some cases, a trusted mediator can bring about resolution through wise negotiations.

Why does the traditional Indian mindset struggle between coexistence and scarcity? Inheritance disputes, often stemming from authoritarianism, illustrate a belief in superior rights within family dynamics. For instance, elder brothers may demand acknowledgment of their superiority to maintain family harmony.

The HUF structure originally aimed to foster coexistence through equitable distribution managed by a Karta (manager). However, deep-rooted patriarchy often places this role with the senior-most male member, sidelining younger or female coparceners. This hierarchical mindset contradicts the values of mutual respect and sustainable relationships.

The Supreme Court of India has consistently upheld the principle that a Karta of an HUF possesses the authority to alienate joint family property under specific conditions, primarily for legal necessity or the benefit of the estate. Notable judgments illustrate that while the Karta holds significant powers in managing and alienating joint family property, such actions must be aimed at benefiting the estate.

The idea of holding on to ‘wealth’ portrays a need to hold on to power belonging to those luckily born on the top of the ladder. This idea also presupposes such wealth is limited. Inheritance disputes expose this paradox of co-existence in an HUF while family dynamics favour patriarchal politics.

The idea of holding on to inherited property highlights a scarcity mindset - a belief that wealth cannot be generated anew by the current generation. This mindset perpetuates patriarchal structures and ignores the equal inheritance rights granted to daughters and sons since September 2005. Mediation can help break these barriers by facilitating open communication and ensuring fair resolutions.

Justice Claire L’Heureux-Dubé described equality as a language with its own rules and nuances. This perspective is crucial in family mediations, where the principles of equality and justice can guide resolutions rooted in respect and human dignity.

Moving from scarcity to abundance

As we move into an age of affluence, where venture capital can be multiplied, it is time to ponder whether it makes any sense to live with the scarcity mindset and lead a patriarchal life, divided due to the favouritism of the lucky sperm.

This article provides a way out – it is time to question the relevance of the scarcity mindset. Does it make sense to uphold patriarchal traditions when wealth and opportunities can be multiplied? The answer lies in embracing a collaborative approach.

Community mediation under the Mediation Act, 2023

The Mediation Act, 2023 in India introduces community mediation to resolve disputes within local communities or families. This initiative promotes peace and harmony as an alternative to formal legal proceedings.

To initiate community mediation, affected parties can approach authorities such as legal services or district magistrates. The approach emphasises impartial understanding and mutual benefits.

The process fosters local harmony and empowers communities to resolve issues in a collaborative and peaceful manner, with emphasis on voluntary participation, maintaining integrity in the mediation process and ensuring that the resolution benefits all involved parties. This approach would strengthen the social fabric of the community, resulting in a win-win “settlement”.

Why families should choose mediation

Families, especially women, must feel confident to seek their rights and remedies before conflicts escalate to court. The primary benefit of family mediation is creating a safe space for difficult conversations. This process builds stronger relationships at home and prevents prolonged legal battles.

Mediation offers a path to resolve disputes while preserving dignity and respect within families and communities. By embracing equality, coexistence and open dialogue, mediation can transform relationships and foster a harmonious society.

Anupam Sanghi is a technology and competition lawyer and a mediator.