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Property Rights of Women in India - LawSimpl

Property Rights of Women in India

Status of women’s property rights in India in the past

Since the advent of human civilization, women have been considered subordinate to men. Despite getting a noble position in ancient India, they never enjoyed the right to own a property or inherit any property in any manner. All she could own was “Stridhan,” to which she had exclusive rights. Her stridhan could be passed on to her daughters and sons. The stridhan consisted of movable property like ornaments, jewelry, etc., that was gifted to her at the time of her marriage. 

The ancient quote, “Na stri swatantramarhati-‘Swatrantam Na Kachit Striyah” makes it very clear why women were not given property rights, as, according to this quote, they were considered unfit to exist independently without anyone’s support. 

Women were denied property rights in all ancient books of codes and conduct. All these books, be it Manusmriti or Arthashastra, clearly stated that women were to be dependent on their father before marriage, followed by their husband, and on the demise of their husband, by their son. In the Great Mauryan Empire, which Chandragupta Maurya established under the guidance of Chanakya, women had to get married to own property. Simply put, a woman could enjoy her property rights only with her husband. She could claim ownership of the property owned by her husband, but not otherwise.  

This restriction on owning a property went on for thousands of years until recently when laws began to be codified and aimed to give equal status to women in all aspects, including property rights. 

Current status of property rights for women-amendments in the law

Indian women have come a long way in their journey to equal status as men. It is ironic how they were once considered next to deities, but now they are fighting for their basic rights. India is not the only country where women have faced such issues; it is almost everywhere we see. 

Today, in India, there is no Uniform Civil Code (UCC) that could regulate property-related laws for everybody, irrespective of their religion, caste, gender, place of residence, and community. Every religion has its law that includes the matter of property as well. Apart from this, even the constitution has the power to make laws in this regard. Therefore, both central and state governments can enact laws, and in some states they already have. This does not stop here. The tribal communities have separate laws. All this makes the property rights topic very complex and entangled as one has to go through so many filters to check which ones she falls under before claiming her property rights.

The Indian Constitution not only assures equality to all people as a fundamental right under Article 14, but it also extends this in subsequent articles to allow for affirmative action and positive discrimination. Within the territory of India, the State shall not deny anyone equality before the law or equal protection under the law, states Article 14 of the Constitution of India.

In practice, this assurance has been interpreted to imply substantial equality rather than “formal” equality, as judicially outlined and elaborated on in numerous judgments of the Supreme Court of India and Indian High Courts.

This viewpoint is supported by Article 15 of the Indian Constitution, which expressly prohibits discrimination on any unbounded ground, including sex, as well as the criteria of affirmative action and positive discrimination.

Article 15 talks about discrimination based on religion, race, caste, gender, place of birth, or any combination of these factors are prohibited:

  1. The State shall not make a distinction against any citizen solely on the basis of religion, race, caste, gender, place of birth, or any combination of these factors.
  2. No citizen shall be subject to any impairment, burden, constraint, or condition purely based on religion, race, caste, sex, place of birth, or any of them about: 

a) access to stores, restaurants, hotels, and entertainment venues; or 

b) use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of state funds or committed to the use of the general public.

  1. This article does not limit the state’s ability to make special provisions for women and children.
  2. This article or clause (2) of Article 29 does not prohibit the State from making special provisions for the progression of any socially and educationally backward classes of citizens, as well as the Scheduled Castes and Scheduled Tribes.

Women are one of the identified disadvantaged people who are unambiguously shielded from any manifestation or form of bigotry. Going a step further, women are also entitled to special support or special rights through legislation, if necessary, to compensate for the historical and social disadvantages they have faced solely because of their gender.

The Indian courts have also adopted an enormously broad definition of the fundamental right to life under Article 21 of the Constitution as a blanket provision, including the right to everything that would make life meaningful and inhibit it from becoming a mere existence, such as the right to food, clean water, and air, water, roads, health, and, most specifically, the right to shelter and housing.

The Hindu Succession (Amendment) Act, 2005

The Hindus, Jains, Sikhs, and Buddhists are all subject to the Hindu Succession Act. The amendment significantly altered the entitlement of daughters to the parental HUF’s property.

Daughters have equal coparcenary rights in HUF property under Section 6 of the Hindu Succession Act, 1956. As a result, the daughter inherits all of the rights associated with coparcenary, along with the right to petition for property partition and to become a Karta of the HUF.

Only daughters born into the family will have coparcenary rights. Other female family members who marry into the family are still regarded as members only.

The Hindu Succession Act and the Indian Succession Act

The Hindu Succession Act, 1956

Succession means:

  • The devolution of the property after the demise of the owner to the person entitled to it.
  • Transmission of property of transferable rights and responsibilities of the departed by law or by the will of the deceased to some other person.

Succession opens when a person dies and is managed by the law in force at the time of demise. 

Section 2(1) of the Hindu Succession Act, 1956, deals with the applicability of the Act. It applies to the following individuals:

  1. any Hindu in any of its forms or developments, including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana, or Arya Samaj; 
  2. any Buddhist, Jaina, or Sikh; and
  3. anyone except for Muslims, Christian, Parsis, or Jew.

Unless it is directed by the Central Government through a notification in the Official Gazette, nothing in this Act shall apply to members of any Scheduled Tribe within the interpretation of clause (25) of Article 366 of the Indian Constitution.

Section 3 of the Act deals with definitions.

Agnate

If two people are related by blood or adoption solely through males, they are said to be “agnates.”

Cognate

If two people are related by blood or adoption but not solely through males, they are said to be “cognates”.

Customs and usage

The terms “custom” and “usage” refer to any rule that, after being consistently and systemically witnessed for a long time, has acquired legal force among Hindus in any local region, tribe, community, group, or family; provided, however, that the rule remains intact and not irrational or contrary to public policy; and given further that, in the situation of a rule subject only to a family, it has not yet been discontinued by the family.

Full blood

Two people are said to be related to each other by “full-blood” when they are descended from a common progenitor by the same wife.

Half-blood

When two people share a common ancestor but have different wives, they are said to be half-bloods.

Uterine blood

Two people are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.

According to Section 5, this Act shall not apply to: 

  1. any property succession that is governed by the Indian Succession Act, 1925, as a consequence of the regulations in Section 21 of the Special Marriage Act, 1954; or(a) any property succession governed by the Indian Succession Act of 1925 as a result of the regulations contained in Section 21 of the Special Marriage Act of 1954; or 
  2. any property that passes to a single heir under the aspects of any contractual obligation or agreement made between the Ruler of any Indian State and the Government of India, or under the terms of any enactment passed before the commencement of this Act.
  3. The Valiamma Thampuran Kovilagam Estate and the Palace Fund are administered by the Palace Administration Board under the authority granted by Proclamation (IX of 1124) prescribed by the Maharaja of Cochin on June 29, 1949.

Section 15 talks about the Hindu Succession Rules in general.

  1. For a female Hindu who dies intestate, her property is distributed as per the rules outlined in Section 16- 
  1. First, sons, daughters, and the husband;
  2. Second, on the husband’s heirs;
  3. Third, the parents;
  4. Fourth, the father’s heirs;
  5. Fifth, the mother’s heirs. 

The Indian Succession Act, 1925

This Act only deals with the rules of inheritance for Christians and Parsis and the law of wills for all except Muslims, since they maintain their law on Wasiyat (Will) under their law. Although this Act is named the Indian Succession Act, it does not deal with the rules of the inheritance of Hindus and Muslims. They have their own rules of inheritance under their separate personal laws. 

Section 2 of the Sct deals with the definitions

Administrator

In the absence of an executor, it refers to an individual designated by the relevant authorities to oversee the property of a deceased individual.

Codicil

It is a legal document on a will that helps to explain, modify, or add to its dispositions and is deemed to be part of the will.

District Judge

It refers to the judge of a principal civil court with original jurisdiction.

Executor

It refers to the individual to whom the execution of a deceased person’s last will is entrusted by the testator’s appointment.

Probate

It refers to a certified copy of a will bearing the seal of a competent court and bearing a grant of administration to the testator’s estate.

Will

It is a legal assertion of a testator’s intention regarding his property that he wishes to be carried out after his death.

Part IV of the Act states the different types of consanguinities.

Section 24 defines kindred or consanguinity as the relationship or linkage of people descended from the same stock or common predecessor.

Section 25 defines lineal consanguinity. 

  1. Lineal consanguinity appears to exist when one person descends directly from the other in a direct line, such as a man and his father, grandfather, and great-grandfather in the direct ascending line, or a man and his son, grandson, and great-grandson in the direct descending line.
  2. Every generation, ascending or descending, indicates a degree.
  3. A person’s father is connected to him in the first degree, as is his son; his grandfather and grandson in the second degree; and so on.

Section 26 defines collateral consanguinity.

  1. Collateral consanguinity happens when two people are descended from the same stock or forefather, but neither is directly descended from the other.
  2. To determine the degree of kindred in which any collateral relative stands to a person deceased, count upwards from the person deceased to the common stock and then descend to the collateral relative, enabling for a degree for each person, ascending and descending.

Section 27 states that people are considered to be similarly related to the deceased for the pursuit of succession. 

For reasons of succession, there is no division: 

  1. between someone related to a person deceased through his father and those who are connected to him through his mother; or 
  2. between someone related to a person deceased by the full blood and those who are linked to him by the half-blood; or 
  3. those who died during their lifetime and those who were only conceived in the womb at the time of their death but were subsequently born alive. 

Rights of a daughter on a father’s property

Prior to 2005, daughters were found to be inferior to sons in terms of rights to the property of their fathers. Daughters, unlike sons, could only be “members” and not “coparceners”. Members could never demand their share of the property as coparcener or request partition. When a daughter gets married, she ends up losing her entitlement to a share of her father’s estate and its maintenance as she is no longer said to be a Hindu Undivided Family (HUF) member. 

In the landmark judgment of Vineeta Sharma v. Rakesh Sharma (2020), the Supreme Court held that “a son is a son till he gets a wife, but a daughter is a daughter all her life.” All the previous decisions were overruled and, in addition to this, the order implementing this ruling has a retrospective effect. The daughter coparcener would have equal coparcenary rights in a Hindu Undivided Family (HUF) property or an equal right to family property by birth regardless of whether the father coparcener died before or after September 9, 2005. On September 9, 2005, the Hindu Succession Act, 1956 was amended to include this provision in it. 

The Supreme Court recognized two points in its decision:

  • Daughters inherit coparcenary rights upon birth, and
  • Fathers did not have to be alive when the Hindu Succession Act, 1956 was amended in 2005. 

It was stated by the Supreme Court unequivocally that a daughter’s right stems from her birth and not from any other criterion, such as the presence of her father.

Rights of a married woman on her husband’s property

A married woman has an equal right to her husband’s property, but this right is restricted to women belonging to Hinduism, Buddhism, Jainism, and Sikhism. This is subject to one restriction. If her husband has specifically excluded her from any entitlement to his property, she cannot claim it, but she does have the right to claim her husband’s ancestral home. 

Property rights of a wife during divorce

A wife cannot claim ownership of the property if it is registered in the name of the husband. If both the husband and wife were joint owners of the property, they would both be entitled to the property as per the amount paid by them to buy it. If the wife has not paid any amount but her name is registered along with the husband, she can still not claim that property as she did not pay for it. However, she is entitled to maintenance for her wellbeing till the time she remarries. 

During the divorce procedure, a husband cannot compel the wife to leave the premises if she has not contributed anything to it. She can live there till their marriage is annulled. 

Property rights of widows

Widows are included in Class I heirs of the Hindu Succession Act, 1956. According to the rule, all the Class I heirs are equally entitled to the estate of the deceased individual. All of the property would be shared evenly amongst all of them.

For example, in the event of a man’s demise, he is survived by three children, a wife, and a mother. As per the law, the property of the deceased will be shared equally amongst all five of these individuals. 

Husband’s rights on wife’s property

The wife’s property is her own and unconditional, in which no one has any rights throughout her lifetime, and she also has full legal rights to dispose of it in any manner to anyone of her choosing; she does not need to consult with anyone about this.

If she dies intestate, her property will first pass to her legal heirs, but only when there is no class I legal heirs will the property transfer to the class II legal heirs.

Rights under Muslim law

In India, inheritance among Muslims is guided by their religious laws, known as Shariat. The inheritance of specific relatives and cases is fixed according to Shariat. There are two classes of Muslims under the Act: Hanafi and Shia, wherein the Hanafi school considers only the agnates as relatives of the deceased, and the Shia school takes into consideration both agnates and cognates. Under this law, there is no birthright to any property, unlike under Hindu law, and the property can be inherited only after the death of the person. 

The rights of a Muslim woman over property

A Muslim female has the right to take Mehr, which is given to her as a gift by her husband either before or after marriage. This could be in cash or kind, and the woman will have absolute ownership over the property received under Mehr. She is not obligated to share the property with any of her parents or her husband. This is given to her as security for her future maintenance in case her husband dies.

Property rights of a Muslim daughter

Under Muslim law, females are considered half the value of males due to the reason that a female is entitled to receive mehr at the time of her marriage. So, at the time of inheritance, the daughters are entitled to receive one-half of the son’s share.

  • If there is no brother, then the daughter inherits half the share of the property and is responsible for managing, controlling, and disposing of the asset in any way she wants.
  • A Muslim daughter is allowed to receive gifts under the act without any limitations.

Property Rights of a Widow

When a man dies, his widow inherits one-eighth of his property. The remainder is to be acquired by his relatives. When the couple has children, this is the case. In the absence of children, the widow receives one-fourth of her deceased husband’s estate. If a man has more than one wife, each wife receives a portion of the inheritance.

Rights under Christian law

Christian women are governed under different laws or acts in India, from state to state. In some taluks, Protestant and Tamil Christians are still governed by their separate customary laws. Christians in Goa and the Union Territories of Daman and Diu are governed by the Portuguese Civil Code, 1867, whereas Christians in Pondicherry may be governed by the French Civil Code, 1804 (such Christians are known as “Renocants”), customary Hindu law, or the Indian Succession Act.

Rights under Hindu Law

Prior to 1956, the property of women was segregated into two subparts: stridhan and woman’s estate. The Hindu Succession Act was supposed to bring about changes in the distribution of ownership of assets or properties among women as a class. Whereas the Act failed to touch upon these points and defined the rights entitled to a widow, soon, after a lot of criticism by various activists, Parliament amended the Act to include women as a class.

This word is composed of a combination of two words: “stri,” meaning woman, and “dhana,” meaning property. Stridhan is a kind of gift given to the woman at the time of her marriage and can include any sort of gift, whether given before the nuptial fire, by the bride’s parents or in-laws as a token of love, etc.

Apart from these, the following gifts also qualify as “Stridhan” under a woman’s (married, maiden, or widow) property:

  • Gifts from strangers
  • Property received by adverse possession
  • Property gained via inheritance
  • Property share owned at the time of partition
  • Property share owned at the time of partition.

Any property received as Stridhan, the woman, is not obligated to share her property with any of her family members. No law states women have limited ownership rights over stridhan, but rather they enjoy absolute ownership, as held in the case of Pratibha Rani v. Suraj Kumar, 1985The court also reiterated that the property owned by a woman is not a joint property of both the spouses and can be used by the husband in case of dire need, but she will have to pay back the same within a reasonable time.

Landmark Judgements

Miss Mary v. the State of Kerala, 1986

Due to patriarchal traditions, women from Kerala’s Syrian Christian community were barred from inheriting property. Mary Roy, a feminist activist, and educator challenged the decree. When her father died, she filed a lawsuit against her elder brother because she was refused an equal share of the family inheritance. 

Even though the lower court rejected the plea, the Kerala High Court quashed the previous decision. The Supreme Court issued a landmark decision in 1986, allowing Syrian Christian women to seek an equal share of their father’s property.

Danamma @ Suman Surpur vs Amar, 2018

The decision was made in an appeal made by the daughters challenging a partition suit decree that barred them from partition. The Court also ruled that the daughters were authorized to benefit from the 2005 amendment and thus to share. The Supreme Court ruled that daughters born before the Hindu Succession Act of 1956 are entitled to the same share of the ancestral property as sons.

Conclusion

Apart from the endless battle for a uniform civil code in compliance with the legal framework, in today’s India, women are fighting for marital property rights, which are denied to them uniformly across all religious boundaries. In some of the hill states, there is also a significant movement toward community ownership of land by women through the creation of group titles and the promotion of group production and management of land and other natural resources by landless women for cooperative cultivation or related agricultural activity. 

However, the obstacles are numerous: social acceptance of women’s property rights drives them. The road ahead looks long and challenging in a country where women are still considered property.

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