The Right to Property that Women Inherit from their Parents and In-laws
This Blog is written by Vibhuti Rao from Symbiosis Law School, Noida. Edited by Karan Dutt.
The Hindu Succession Act of 1956 was a watershed moment in Hindu law for women. For the first time, a Hindu woman was given the opportunity to become the property’s sole owner. She had the same right to inherit as a man, and a window was given special consideration in the succession of both her husband’s and her father’s properties. The Hindu Succession (Amendment) Act of 2005 is a law that amends the Hindu Succession Act of 1956.
Regardless of the fact that these regulations have spurred some minor variations in property ownership, the situation has effectively remained constant because women have yet to establish their rights. When a son dies, for example, a mother shares equally with her children and widow. When a married daughter dies, however, the mother inherits the rank after the heirs of her husband. In 1955-1956, the law was enacted in this fashion. In addition, a woman’s property rights in India differ based on her religion, marital status, place of origin, and tribal identification. This means that there is no single set of rules that define an Indian woman’s property rights.
The distorted reality of gender’s place in social, political, economic, and cultural transactions demonstrates that law is not only not gender-based, but also not always gender-neutral. Gender neutrality will not suffice if it simply maintains the status quo, which is nothing more than the protection of gender discrimination.
WOMEN’S RIGHTS: HISTORIC OVERVIEW
Women’s Property Rights & Vedic Period: During Vedic period woman was considered as a goddess and was adored. The only Disability from which she suffered is that she didn’t have the right of inheritance. Vedic literature prescribed inheritance to the unmarried daughter and to a brother-less married daughter. The widow was not given any right of inheritance in her husband’s property but childless widow was entitled to succeed to her husband estate. Women’s Property Rights & Medieval Period: The Indian woman’s position in the society deteriorated during the medieval period when Sati, child marriages and a ban on widow remarriages became part of social life .The Muslim invaders brought the purdah practice in the Indian society. Among the Rajputs of Rajasthan, the Jauhar was practiced. Polygamy was widely practised especially among Hindu Kshatriya rulers. Women had no property rights during this period.
Mitakshara Law: Under this law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparceners, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations as being entitled to inherit namely – 1. widow, 2. daughter, 3.mother 4.paternal grandmother, and 5.paternal great-grand mother
Dayabhaga Law: Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father’s life time. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers and they can’t compel the father to partition the property in his lifetime and the latter is free to give or sell the property without their consent. If one of the male heirs dies, his heirs, including females such as his wife and daughter would become members of the joint property, not in their own right, but representing him.
SIGNIFICANCE AND IMPACT OF THIS DEVELOPMENT
India’s top court has ruled that daughters have equal rights to Hindu family property. All Hindu women now have equal rights to their father’s property from 1956, when the succession law was first codified. “Once a daughter always a daughter…son is a son till he is married,” said Justice Arun Kumar Mishra, who was heading the three-judge bench.
“The daughter shall remain a coparcener [one who shares equally with others in inheritance of an undivided joint family property] throughout life, irrespective of whether her father is alive or not. Daughters must be given equal rights as sons, daughter remains a loving daughter throughout life,” Mishra pronounced.
India has individual laws for Hindus, Muslims, Christians, Zoroastrians, and Jews, first framed under the British rule. Laws related to marriage, inheritance and adoption are codified in different acts for different religions. Since India’s independence in1947, there has been a growing demand for a common legislation instead of personal laws, called the Uniform Civil Code. Supporters of the legislation argue that a secular republic requires common law for all citizens rather than rules differentiated based on religion.
Activists have also argued that the rights of women are usually limited under religious laws. In a pivotal judgement concerning personal laws, the Supreme Court of India had deemed the Islamic practice of triple talaq —men instantly divorcing their wives — was unconstitutional in 2017. Last year Indian lawmakers passed a bill criminalizing the practice.
This was quite a progressive move that has brought Indian women in light as coparceners and given them the due right they have always rightfully deserved. This is just the beginning of doing right by all the historic wrongs and ignorant laws.
TYPES OF SUCCESSION
The term “testamentary succession” pertains to property succession governed by a testament or a will. A Hindu male or female can make a will in the character of anyone under Hindu law, including a portion in the undivided Mitakshara coparcenary property. This ought to be legal and legitimate. The distribution will be made according to the terms of the will rather than the laws of inheritance. Property can devolve under the law of inheritance if the will is not valid or legally binding.
Someone who dies intestate has already been defined as someone who dies without a will or testament. When this occurs, the property will be divided among the legitimate heirs in accordance with the laws of heredity.
Because India lacks a uniform civil code, the legislation governing inheritance and property division varies depending on one’s religious affiliation. The Hindu Succession Act of 2005 and the Indian Succession Act of 1925 are two key statutes that govern property distribution.
The Hindu Succession Act, 2005 –
Applies to cases without a will that is intestate Hindus, Sikhs, Buddhists and Jains.
The Indian Succession Act, 1925 –
Transfer of property of Hindus and Muslims by a will, Christians, Parsis and Jews are governed by the Indian Succession Act.
Muslim Personal Law (Shariat) Application Act, 1937 –
Applies if there is no registered will. Muslims depend on laws of the particular sect they belong to.
The Hindu Women’s Right to Property Act, 1937 was the outcome of discontent expressed by a sizeable section of society against the unsatisfactory affairs of the women’s rights to property. Under the said Act a widow was entitled to a limited interest over the property of her husband – what was to be termed as Hindu widow’s estate. The Act was amended in 1938 to exclude the widow from any interest in agricultural land.
The Hindu Succession Act, 1956, was the first law to provide a comprehensive system of inheritance among Hindus—and Jains, Sikhs and Buddhists—and address gender inequalities in the area of inheritance. It applies only in the case of intestate succession and to anyone who converts to Hinduism and their children. The intestate’s children (married or unmarried daughter or son), mother and widow get equal share. It has no application in case of testamentary succession (where there is a will).
After the Hindu Succession (Amendment) Act, 2005 Section 6: In September 2005, the Supreme Court (SC) in a landmark judgment declared that Indian women would have an equal right to a share in property as men, granting daughters the right to inherit ancestral property along with male relatives. So under this Act, the difference between the female and male inheritor has been abolished. Now even female inheritor [daughter] can claim partition of the ancestral property.
Section 6 of this Amendment Act (2005): It provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family. The daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. The excepted categories to which new Section-6 is not applicable are two, namely: i. where the disposition or alienation including any partition which took place before 20- 12-2004 ii. where testamentary disposition of the property was made before 20-12-2004.
Vineeta Sharma vs Rakesh Sharma clarifies all the discrepancies related to the rights of the daughter in her paternal property, irrespective of her marital status, Rajnesh vs Neha ensures the safety of shelter and life if she is deserted by her matrimonial home. The special laws for women owe their roots to Article 15(3) and Article 39 of the Constitution.
The Hindu Succession Amendment Act, 2005, granted equal coparcenary rights in a Mitakshara coparcenary to the daughter in the same manner that a son would inherit by birth. However, the execution of such litigation led to various disputes which the Supreme Court attempted to settle in the Vineeta Sharma case.
The basis of the inheritance of a female Hindu’s property who dies intestate would thus be the source from which such a female Hindu came into possession of the property and the manner of inheritance which would further decide the manner of devolution. In the case of ‘self-acquired property’, Section 15(1) will apply and not Section 15(2). The Hindu Succession Act does not put an embargo on a female to execute a will. Section 15(1) would apply only in a case where a female Hindu dies intestate i.e., without making a will. In such a situation normal rule of succession as provided for in the statute will apply.
The court further observed that It is now an ingrained principle of law that sentiments or sympathy alone would not be a guiding force in determining the rights of the parties which are otherwise clear and obvious under the Hindu Succession Act. This court cannot issue a direction only on sympathy or sentiments. If the contention of the appellants is to be accepted, we will have to interpret Section 15(1) in a manner which was not contemplated by the Parliament. The Parliament has bestowed equality for married and unmarried Hindu women in the matter of property. The golden rule of interpretation must be applied.
The progress of any society depends on its ability to protect and promote the rights and interests of its women. Property rights and other economic rights offered to women under different statutes in India are quite complex and the issue further gets perplexed after their marriage, since they become part of a new family. For the women to be in a bargaining position, the property rights require an egalitarian approach for men and women. In fact, property rights are considered to be an inalienable human right, a position recognised by the International Human Rights Law and conventions.The bicameral legislative body, an independent judiciary, and the other checks and balances established by the Constitution are expected to create a political climate in which property interests of women would be better protected.