This article is written by Mehak Jain, who is pursuing B.A. LL.B.(Hons.) from Hidayatullah National Law University. This is an exhaustive article that aims to explain the property rights of married women under different personal laws.
Indian women have been discriminated against and have been denied the right to property for years. Inheritance laws come under personal laws and vary for different faiths. Tribals are governed by their own customary laws. This non-uniformity has led to a continued bias against women. Most of these laws discourage partition of property, be it agricultural or otherwise, on the fear of losing it when she gets married.
Low awareness and literacy among women also contribute as one of the factors. Another constituent is fear from the age-old patriarchal mindset. In fact, in several northern states, women have renounced property too due to the custom of ‘haq tyag’, which means a voluntary renunciation of property.
However, the introduction of the Hindu Succession Act, 1956 has changed the scenario. It gave women equal rights and challenged the generation-old bias towards them. Gender-neutral inheritance laws are the solution to the problem and the same must be looked into to guarantee both the genders equal rights over their property.
Which Act applies to whom?
Hindu Succession Act, 1956
This Act is applicable to intestate(death without a will) inheritance and succession among Hindus, Sikhs, Jains, and Buddhists.
Indian Succession Act, 1925
Sections 31 to 49 state laws of succession for Christians and the Jew community. Section 50-56 of the Act deal with intestate succession among Parsis.
Muslim Personal Law(Shariat) Application Act,1937
This Act governs non-testamentary succession laws for Muslims. However, for the states of West Bengal, and that of Mumbai and Madras jurisdiction, the Indian Succession Act, 1925, governs the matter in cases where a Muslim has died leaving behind a will or a ‘wasiyat’.
Special Marriage Act, 1954
It deals with succession matters for interfaith marriages.
Property rights as per Hindu law
Along with being applicable to Hindus, Buddhists, Jains, and Sikhs, the Hindu Succession Act, 1956 is also applicable to anyone who converts into Hinduism. The Act is applicable to both, women and men. It is important to note that the provisions of the Act do not deal with testamentary succession, i.e. when there is a will left by the deceased. The Act only governs cases where no will as to how the property is to be distributed is there, i.e. it governs intestate succession only.
In the case of BP Achala Anand v. S. Appi Reddy, it was held that the wife is entitled to reside in her matrimonial home under personal laws. She is entitled to be maintained by her husband and to remain under his roof. She is also entitled to shift residence and live separately on the account of his misconduct, or his refusal to maintain her, or for any other reasonable cause. The right to residence is a part of her right to maintenance.
Classification of property
Property may be classified as ancestral or self-acquired. Ancestral property is that property that is inherited up to four generations of male lineage without any division. A right to a share in it is acquired by birth. Self-acquired property is one that has been bought by a person using his/ her own resources, or through any property acquired from their share in the ancestral property. This property may be distributed in any way the Hindu father wishes, for he has full discretion in reference to it.
A person who dies without a will is known as intestate. There are 4 categories to which property may be devolved on the death of an intestate.
- Class I
- Class II
- Agnates, i.e. people related through blood or adoption through the male side
- Cognates, i.e. people related through blood or adoption but not wholly through the male side.
These categories can be thought of as a chain-like structure, where the property shall be devolved to the next class if the former class is to be denied. Class I is given preference. If Class I heirs are absent, the property is devolved to Class II heirs, and so on.
Section 10 of the Hindu Succession Act states that the distribution of property takes place among all living heirs, and that includes the deceased’s widow as well. She is entitled to an equal share of her husband’s property like other heirs and if there are no sharers, she is entitled to inherit all the property of her deceased husband.
Also, a married woman has sole authority and responsibility for her property, whether it be inherited, gifted, or earned. She has exclusive rights and is the sole owner and manager of her property. She is also entitled to maintenance, support, and shelter from her husband, or from her joint family if she was living in one.
In cases of divorce, issues related to maintenance and alimony are settled as the case proceeds only. Divorce settles issues once and from all and is proof that both do not owe anything to each other and are free from the bond. Therefore, in case of the death of her divorced ex-husband, the wife is not entitled to any part of the property if he was intestate.
What if no divorce has been given, i.e. the husband married a second time without divorcing his first wife? In this case, the second marriage shall be deemed to be void, and the wife from the second marriage shall not be entitled to any property. The rights of the wife from the first marriage shall remain intact. However, children from the second marriage will be entitled to get a share in the property along with other legal heirs.
In the case of interfaith marriages, the wife is entitled to the inheritance of her husband’s property as his personal laws dictate.
If the husband is Muslim and she did not convert to Islam beforehand, she shall be entitled to Mehr(dower), but cannot inherit her husband’s property. Such a marriage shall be neither regular nor valid.
If the husband is a Christian, the wife’s religion shall not act as a hindrance from inheriting. If he has left behind a widow and lineal descendants, she shall be entitled to 1/3rd of his property, while the remaining shall go with them. If there are no lineal descendants, but other kindred are alive, half of the property shall be devolved to the wife and the other half, to his existing kindred.
Property rights as per Muslim law
Inheritance laws are governed by personal laws in the case of Muslims, and there are four sources of Islamic law governing the same- the Quran, the Sunna, the Ijma, and the Qiya. Even though both males and females are entitled to a share in the property, the share of the female is typically half of that of a male. A Muslim man is required to devolve two-thirds of his property among his legal heirs but may dispose of the remaining one-third of his property as per his own wish.
In Islam, a women’s identity, though inferior to that of men, is not ignored entirely. She is responsible for maintaining and has authority over her goods and property. In case of discrimination by the husband towards other wives, if any, she may take action against him. She is entitled to equal maintenance as his other wives.
A Muslim widow is entitled to get a one-eighth share in the property in case there are children, and one-fourth share in the property if there are no children. In the case of a plurality of wives, the share may diminish and come down to one-sixteenth. She may inherit a greater amount by will if there are no sharers.
The Supreme Court, in the famous case of Mohd. Ahmed Khan v. Shah Bano Begum and ors.(also known as the Shah Bano case), held that in case of a divorce, the husband is still required to make reasonable and fair provision for the future of the divorced wife under Section 3(1Ha) of the Muslim Women(Protection of Rights on Divorce) Act, 1986. After the iddat period( the waiting period after the death of husband), her parental family shall have to provide maintenance.
Property rights for Christian wives
Inheritance rights of Christians are governed by Sections 31-49 of the Indian Succession Act, 1925. These provisions are gender-neutral in nature and both heirs inherit equally.
- If the husband leaves behind both, a widow and lineal descendants, then the widow shall be entitled to one-third his property, while the remaining two-thirds shall be handed over to his lineal descendants.
- If there are no lineal descendants but other relatives, half the property shall go to the wife and the other half shall be devolved to the relatives.
- If there are no relatives, the wife shall be entitled to all of her husband’s property.
A Christian man can marry a second time only after legally divorcing his first wife, or on the account of her death. If he marries a second time without divorcing his first wife, neither the second wife nor her children shall have any right over his property. However, the children of a legally divorced wife are entitled to a share in their father’s property, and so is the second wife and her children.
Sections 15 and 16 of the Hindu Succession Act, 1956, states that if a woman dies intestate, her husband’s heirs are entitled to her self-acquired property, and not her parents. However, in case the husband dies intestate, his relatives are entitled to the property, not his wife’s heirs. This shows an explicit bias since her husband’s heirs are entitled to her property, but it is not the other way round.
In some states, women are not entitled to inherit agricultural land as it may lead to the fragmentation of landholding. Schedule IX of the Constitution of India deals with the Zamindari Abolition and Land Reforms Acts of various states careful perusal of which proves that laws are biased against women.
Customary laws of tribals are patriarchal and grossly discriminate against women. Despite there being various legislations to avoid the same, many tribal women continue to suffer.
Since on marriage, a Muslim woman gets Mehr and maintenance, as well as inheritance, from her husband, it is considered that the proportions of inheritance should differ between the two genders. A PIL was filed by NGO Sahara Kalyan Samiti asking an amendment in Muslim personal law, on grounds of it being discriminatory on the issues relating to partition of property as compared to their male counterparts. The petition claimed that on the death of an intestate husband, his Muslim widow shall be entitled to 1/8th of his property if they had kids, else, she shall be entitled to 1/4th of his property. On the contrary, on the death of an intestate wife, her Muslim husband shall be entitled to 1/4th her property if they had kids, and half of her property if they did not have kids. It was also alleged that the daughter receives half of the share as her brother.
The plea contended that this discrimination violated their fundamental right to equality enshrined under Article 14, 19, and 21 of the Constitution. The Delhi High Court has sought the Centre’s response on the issue, and it is still pending in Court.
Gender-neutral laws are the need of the hour. Despite countless pieces of legislation to aid the cause of equality of partition, contrary practices still exist in the country. A uniform law is needed which is applicable to all faiths alike. Social evils such as “haq tyag” should be abolished and women should be made aware of their inheritance rights. Tribal customs in states such as Jharkhand devoid women over any right to property.
Even Muslim women face blatant bias, where the difference in the proportion of property distribution is half of that of their male counterparts. Strong backing of laws and liberal interpretation is required from the Court. It is necessary that women must have equal proprietary rights as men as being a citizen of India.
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