This article is written by J Jerusha Melanie, a student of SRM School of Law, Tamil Nadu. This article seeks to elucidate the various property rights of women in India in accordance with respective religions and the landmark judgments that led to its recognition.
It has been published by Rachit Garg.
Introduction
Women across the globe have struggled for ages to have rights over family properties. In various societies, the philosophy behind frowning upon the thought of giving property rights to women was that they do not permanently stay in their birth family. Once married, they move into their marital families and become a part of it. So, only the male members had rights over their family properties. However, women’s property rights have significantly evolved in the past couple of decades. Let’s try to understand women’s property laws and their rights in India.
Property rights of women under Hindu Law
The Hindu Succession Act, 1956 and Hindu Women’s Right to Property Act, 1937 govern Hindu women’s property rights in India. The Hindu Women’s Right to Property Act, 1937 predominantly dealt with the property rights of Hindu widows. It allowed a Hindu widow to receive an equal share in her intestate husband’s property as her sons. However, it failed to address the issues pertaining to the property rights of women as a whole; also, it did not give coparcenary rights to Hindu women.
The Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as the 2005 Amendment) introduced upon the recommendations of the 174th Law Commission Report, made certain magnificent changes to the 1956 Act, which are discussed further. It is a breakthrough toward getting rid of gender inequality in India.
The following are the Hindu women’s property rights in India, as provided under the Hindu Succession Act of 1956;
Coparcenary interest
Before knowing the interest of a Hindu woman over any coparcenary property, it is pertinent to first understand its meaning. A coparcenary property refers to any intestate ancestral property acquired by the members of a Hindu Undivided Family (HUF). Before the 2005 Amendment, only three male lineal descendants (son, grandson, and great-grandson) constituted the body of coparceners and were entitled to acquire any coparcenary property. This meant that women had no interest in the coparcenary property since they could not be coparceners. For instance, a son of a coparcener received a share in the coparcenary property, but his sister didn’t.
However, the 2005 Amendment amended Section 6 of the Hindu Succession Act of 1956 (hereinafter referred to as the 1956 Act) and eradicated the age-old discriminatory practice of keeping women out of the coparcenary system. Section 6(1) of the 1956 Act provides that in any HUF governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right, just as a son of a coparcener.
So, now, a daughter of a coparcener is also a coparcener in a HUF.
Equal coparcenary rights
Section 6 of the 1956 Act vests equal rights and liabilities on both the sons and daughters of a coparcener. Section 6(1) provides that the daughter of a coparcener:
- Has the same rights in the coparcenary property as she would have had if she had been a son;
- Has the same liabilities in respect of the coparcenary property as that of a son.
Share in coparcenary property
Section 6(3) of the 1956 Act provides that the interest of a deceased coparcener in the property of a HUF shall devolve by testamentary or intestate succession. The devolution shall take place in such a way that:
- The daughter has the same share as that of a son;
- The share of a pre-deceased woman coparcener shall be allotted to her surviving child in the same way as she would have received if she had been alive;
- The share of a pre-deceased child (son or daughter) of a pre-deceased woman coparcener shall be allotted to his/ her child in the same way as he/ she would have received if she had been alive.
Full ownership
Under Section 14 of the 1956 Act, every Hindu woman has full ownership right over any moveable or immovable property she possesses through acquisition. She may have acquired it before or after her marriage in any of the following ways:
- Inheritance
- Partition
- In lieu of maintenance or its arrears
- Gift from any relative or non-relative
- Own skill or exertion
- Purchase or prescription
- Stridhana, etc.
So, section 14 of the 1956 Act gives any Hindu woman the right to use her property without consent or permission from her husband, father, etc. She can freely transfer her property and use the money gained from such transfer in any way she wants.
The right to full ownership also allows any Hindu woman the right to dispose of her property through intestate or testamentary succession. This is reaffirmed under Section 30 of the 1956 Act. It previously allowed only Hindu males to dispose of their property by way of a will. However, thanks to the 2005 Amendment, now Hindu females have the same right.
Right over son, father and husband’s property
Section 8 of the 1956 Act provides the general rules as to the devolution of any intestate Hindu male’s property. It states that the heirs specified in class I of the Schedule are firstly entitled to receive shares of the deceased male.
The following are the class I Heirs:
- Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son.
The distribution of such shares takes place as per the rules provided under Section 10 of the 1956 Act, as mentioned below:
Rule 1- The intestate’s widow, or if there is more than one widow, all the widows together shall take one share.
Rule 2- The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4– The distribution of the share referred to in Rule 3—
(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions, and the branch of his predeceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
So, Sections 8 and 10 of the 1956 Act clearly specify that daughters, widows, and mothers have sufficient right over the property of their intestate fathers, husbands, and sons, respectively.
Sections 8 and 10 of the 1956 Act also clarify that a sister, who is one of the class II heirs, has right on her brother’s property only in the absence of his class I heirs.
Further, a daughter’s marriage is no restriction on her rights over her father’s property. She has the same rights over the property as her brothers.
A divorced woman is entitled to receive maintenance or alimony from her husband after the divorce. However, she is not entitled to a share of his property if he dies intestate.
Right over daughter, mother, and wife’s property
Section 15 of the 1956 Act deals with the general rules as to the devolution of property of an intestate Hindu woman. It provides that the devolution shall take place-
- Firstly– upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
- Secondly– upon the heirs of the husband;
- Thirdly– upon the mother and father;
- Fourthly– upon the heirs of the father; and
- Lastly– upon the heirs of the mother.
So, Section 15 of the 1956 Act elucidates that daughters, mothers, and husbands have rights over the property of their intestate mothers, daughters, and wives, respectively.
Property rights of women under Christian Law
The Indian Succession Act, 1925 (hereinafter referred to as the 1925 Act) deals with Christian women’s property rights in India. One of the best aspects of this Act is that it does not discriminate against women in any manner. It considers both male and female children as lineal descendants and entitles their equal share in the intestate parents’ property. It also provides similar rights to widows and widowers over the property of their spouses.
Before getting into the property rights of Christian women in India, let’s understand the meaning of two terms- lineal descendants and kindred. Section 23 of the 1925 Act defines kindred or consanguinity as the connection or relation of persons descended from the same stock or common ancestor. In simple terms, kindred refers to distantly related persons. Lineal consanguinity is defined under Section 25 of the 1925 Act as descending in a direct line from the other. For example son, grandson great-grandson, great-great-grandson, and so on may be the lineal descendants of any person.
The 1925 Act provides no exclusive provision for a Christian widow’s right over her deceased intestate husband; it varies depending on the existence of any lineal descendants of her husband, as discussed below.
Right of a widow when left with or without lineal descendants or kindred
Section 33 of the 1925 Act elucidates how an intestate male’s property will devolve if he left behind a widow with or without lineal descendants or kindred. It states that if the intestate male has left behind-
- A widow and any lineal descendants, one-third of his property shall be the widow’s and the remaining two-thirds shall be his lineal descendants;
- A widow, no lineal descendants, but persons kindred to him, one half of his property shall be the widow’s and the remaining one half shall be the kindred’s;
- Only the widow, then his entire property shall be his widow’s.
Further, under Section 35 of the 1925 Act, a husband (widower) has the same rights in respect of his intestate wife’s property in a way similar to that provided for the widow under Section 33.
Right of daughter in intestate father’s property
Section 36 of the 1925 Act provides that the property belonging to the lineal descendants after deducting the widow’s share shall be equally divided among them.
So, Section 33 read with Section 36 of the 1925 Act impliedly clarifies that a daughter has an equal share as that of a son in intestate father’s property.
Property rights of women under Muslim Law
Property rights are very complex under Muslim law. The concept of inheritance under it has four features:
- The Koran specifies precise shares to certain persons;
- The residue goes to the agnates (an agnate is a person related wholly through males either by blood or by adoption); in their absence, it goes to the uterine heirs (uterine heirs are the persons descended from a common mother but by different husbands);
- Maximum one-third of any Muslim’s property can only be given away in the form of a will;
- Rights of inheritance begin only on the death of the person.
There are broadly two schools of thought in Muslim law- the Sunni and Shia. The Sunni school predominantly operates in India. It has four sub-schools, which are Hanafi, Shafi, Maliki, and Hanbali. The majority of Muslims in India follow the Hanafi school of thought.
Under the Hanafi school, there are seven categories of heirs (three principals and four subsidiaries). The principal heirs are Koranic, Agnatic and Uterine heirs. The subsidiaries are the successor by contract, the acknowledged relative, the sole legatee, and the state.
Given below are the Koranic heirs:
- Heirs by affinity- Husband and wife
- Blood relations- Father, Grandfather, mother, grandmother, daughter, son’s daughter, full sister, consanguine sister, uterine brother, and uterine sister.
The Koranic property rights of Muslim women include:
- A widow has the right to receive one-fourth share of her husband’s property if she has no children.
- A widow has the right to receive a one-eighth share of her husband’s property if she has children.
- Female heirs get half the share of their parent’s property compared to what the male heirs receive.
- A single daughter has the right to receive half the share of her parent’s property. However, in the case of more than one daughter, all the daughters get two-thirds of the share.
Property rights of women under Parsi Law
The 1925 Act applies not just to the Indian Christians, but also to Parsis in India. The Indian Parsi women’s property rights are dealt with under Chapter III of the 1925 Act.
Dealing with the division of intestate’s property, Section 51 of the 1925 Act lays down the same rules for the property of both Parsi men and women in India. It states that if the Parsi woman/ man dies intestate leaving behind-
- A widow/ widow and children, they shall receive equal shares in the property;
- Only children, they shall receive equal shares in the property;
- One or both parents, along with the widow/ widower and/ or children, the parent (or each parent) shall receive a share equal to half the share of each child.
So, Parsi daughters and wives have the right to equal shares in the property of their intestate fathers and husbands, respectively.
Section 50 of the 1925 Act deals with the general principles of intestate succession and provides that if the widow or widower of any relative of the intestate remarries during the lifespan of the intestate, then he/ she shall not be entitled to get any share in the intestate’s property. At the outset, these rights are not gender-discriminatory. However, on a closer inspection, one can find a few instances of unfairness. For example, a widow of a predeceased son who died childless has no share in the intestate’s property (Section 53(a) of the 1925 Act).
Landmark cases on recognition of property rights of women in India
Through the following cases, let’s understand the judicial journey of how the battle of recognizing women’s property rights in India was finally won.
Mary Roy v. State of Kerala (1986)
In this case, Mary, a Christian widow staying at her father’s house in Travancore was harassed and forced by her brothers to evacuate the property. As she had no other place to go, she refused to leave the house. Her refusal led her brothers to hire some goon to threaten her. The contention of the brothers was that the property belonged to them according to the Travancore Succession Act, 1916 (the Act). They relied on Section 24 of the Act which stated that a widowed mother has a life interest in the property and that a married daughter who received Stridhan has no right to it.
Mary’s case against her brothers to get equal rights on her father’s property was denied by the Lower Court. However, the High Court ruled in her favour and held that she has equal rights over the property.
Nevertheless, even after getting her right acknowledged, the harassment of her brothers did not stop. So, she approached the Supreme Court under Article 32 of the Constitution of India challenging the constitutionality of Section 24 of the Act.
Upholding Mary’s rights, the Supreme Court held that-
- Section 24 of the Act violates Article 14 of the Constitution of India
- No personal law is above the Constitution of India;
- Any Act that invalidates the provisions of the Constitution of India is void;
- The Indian Succession Act, 1925 will apply in the present case, instead of the Act;
- One-third of the father’s property will be Mary’s.
This case proves to be one of the breakthrough decisions relating to the equal rights of Indian Christian sons and daughters on the father’s property.
Madhu Kishwar & Ors. v. State of Bihar & Ors. (1996)
In this case, the constitutionality of certain provisions of the Chota Nagpur Act, 1908 was challenged. It was contended that the provisions favoured males belonging to the Scheduled tribes in the succession to property. The court held a few of the impugned provisions unconstitutional; however, it also held that the tribals, who are governed by their customs and the custom vary from people to people and religion to religion, codified Hindu Law does not apply to them.
Prakash v. Phulavati (2016)
In this case, the respondent (Phulavati) had initially filed a partition suit before the Trial Court in 1992, after her father’s death. She claimed 1/7th share in the properties that her father acquired from his mother. While the suit was still pending, the Hindu Succession (Amendment) Act, 2005 was made effective. The Amendment gave coparcenary rights to the daughters as well. Phulavati used the opportunity; she amended her previous claim as per the 2005 Amendment. The Trial Court only partly allowed her suit.
Following the Trial Court’s order, Phulavati approached the High Court stating that she, being a coparcener as per the 2005 Amendment, has share equal to her brothers in the father’s property. The appellant (Prakash, Phulavati’s brother) contended that the 2005 Amendment will not apply in the present case, as the father died prior to 2005. The High Court ordered in Phulavati’s favour and allowed the retrospective effect of the 2005 Amendment.
Aggrieved by the High Court’s decision, Prakash approached the Supreme Court. Finally, the Supreme Court overruled the High Court’s decision and held that the 2005 Amendment will not apply to any partition which was effected before its enactment.
Danamma v. Amar Singh (2018)
In this case, the appellants were the two daughters of Late Shri Gurulingappa Savadi and his widow, Sumitra. The couple also had two sons, Arun Kumar and Vijay. Amar Singh, the son of Arun Kumar, filed the partition suit claiming a one-fifteenth share in Savadi’s property. His claim was based on the fact that the property was in the possession of the two sons and the widow. He contended that the two daughters were not the coparceners, as they were born prior to the enactment of the Hindu Succession Act, 1956 as amended in 2005 (the Act). Following the Trial Court’s decision favouring Arun Kumar, the appellants approached the High Court challenging the decision. The High Court upheld the Trial Court’s decision, following which the appellants approached the Supreme Court.
The Supreme Court, however, held that Section 6 of the Act has a retrospective effect on the devolution of coparcenary property. Daughters are coparceners, irrespective of whether the father died before or after the 2005 Amendment. Ultimately, the contended was equally divided into five shares, one each for the two sons, two daughters, and the widow.
Hence, this case established the retrospective effect of the Act on the coparcenership of women with regards to the father’s date of death.
Vineeta Sharma v. Rakesh Sharma (2020)
In this case, the appellant’s father died in 1999. She had three brothers and a widowed mother. One of her brothers died unmarried in 2001, after which she filed a suit claiming coparcenership and one-fourth share in her father’s property. But, the High Court rejected her claim stating the fact that her father died before the 2005 Amendment.
The High Court’s decision brought confusion to the retrospective effect of the 2005 Amendment because of the two previous contradicting decisions in the cases Danamma v. Amar Singh (2018) and Prakash v. Phulavati (2016).
Clarifying this chaos, a three-judge bench of the Supreme Court led by Justice Arun Mishra gave a landmark verdict on the 11th of August, 2020. The bench upheld its decision in the case of Danamma v. Amar Singh and overruled Prakash v. Phulavati. It held that a daughter is considered a coparcener by birth, irrespective of whether her father is alive or not. Further, the retrospective effect of the 2005 Amendment was also upheld and well-settled in this case.
Conclusion
The world is changing. Gone are the days when patriarchy ruled women’s rights and wishes. Women are becoming more independent than ever before. Thanks to education and technology, today women need not rely on the age-old tradition of Stridhan to satisfy their post-marital needs. And that’s why Stridhan is slowly disappearing from the face of modern Indian societies. The eradication of the archaic tradition is empowering women to be entitled to property rights similar to that of their male counterparts. The recent judicial developments in the recognition of property rights of Indian women that we discussed above are a positive movement towards a gender-equal India. Let’s hope we achieve it soon.
Frequently Asked Questions (FAQs)
Does a Hindu woman have the right over her father’s property?
Yes, a Hindu woman has rights equal to that of her brothers over her father’s property.
Can a Hindu woman be a coparcener?
Yes, a Hindu woman is a coparcener as per the Hindu Succession (Amendment) Act, 2005.
Which law applies to the succession of properties of any Buddhist, Jaina or Sikh in India?
The Hindu Succession Act, 1956.
References
- Law of Succession in Muslim Law | Law column
- Microsoft Word – Women’s Property Rights in India final Shruti Pandey.doc (womenslinkworldwide.org)
- Muslim Woman’s Right to Property in India! – Property lawyers in India (nrilegalservices.com)
- a1925-39.pdf (indiacode.nic.in)
- hindu-succession-act-1956.pdf (tripura.gov.in)
- Plight and struggles of Hindu women in the field of property rights : a historical study – iPleaders
- Judicial development towards gender justice – iPleaders
- A Critical Analysis of Hindu Succession Amendment Act, 2005 – iPleaders
- Prakash and Ors v. Phulawati and Ors – Inheritance rights of a daughter over coparcenary property (indialaw.in)
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