Much like those of women of any other country, property rights of Indian women have evolved out a continuing struggle between the status and the progressive forces. And pretty much like the property rights of women elsewhere, property rights of Indian women too are unequal and unfair, while they have come a long way ahead in the last century, Indian women still continue to get less rights in property than the men, both in terms of quality and quantity. The property rights of the Hindu women are highly fragmented on the basis of several factors apart from those like religion and the geographical region which have been already mentioned. Property rights of Hindu women also vary depending on the status of the woman in the family and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife or widow or mother. It also depends on the kind of property one is looking at: whether the property is hereditary/ ancestral or self-acquired, land or dwelling house or matrimonial property.

The general law relating to the inheritance and succession can easily be referred to The Indian Succession Act, 1925. Under this Act every Indian is entitled to equal shares on inheriting the property on the death of a person. The exceptions are Hindus, Sikhs, Jains, Buddhists and Muslims as they are governed under separate laws of succession.

Inheritance under Mitakshara and Dayabhaga school

The Mitakshara system distinguished between two types of property: joint family property and separate property. The joint family consisted principally of ancestral property plus any property that was jointly acquired or was acquired separately but merged into the joint property. Women could not be coparceners in Mitakshara joint family property, their rights in which included only maintenance as incoming wives and as widows or unmarried daughters; and when they married, daughters were entitled to marriage expenses and associated gifts. In a man’s separate property, however his widow could inherit a limited estate, but only in the absence of sons, agnatic grandsons, and agnatic great- grandsons, and only if she remains chaste. A limited estate allowed the woman to enjoy the property for her lifetime, but she could not alienate it (such as by gift, sale, or mortgage), except under severe necessity, and (within reasonable limits) for pious and religious acts, especially those as seen as conferring spiritual benefit on the deceased. A daughter (an unmarried one got preference) came even after the widow. That is, for a daughter to inherit her father’s estate required the absence both of the noted male heirs and of the widowed mother. And, like the widow, the daughter could receive only a limited estate.

Under the Dayabhaga system, a man was deemed absolute owner of all his property. In contrast to Mitakshara law, Dayabhaga recognised the widow and (after her) daughters as heirs even when the man’s ancestral estate had not been separated before his death. Hence women inherited an interest in all property, irrespective of it being joint or separate. This also meant that the probability of a widow or daughter inheriting some property was somewhat greater under Dayabhaga than Mitakshara.

According to both Mitakshara and Dayabhaga, Hindu widows could inherit immovable property such as land only under restrictive circumstances and could at best enjoy a limited estate in it and daughters came only after widow, married daughters coming after unmarried ones. Under both these schools, there was also some recognition of female property rights in the concept of stridhan, although there were varied and changing interpretations of what stridhan could include, how much control a woman could be allowed over it, and how it would devolve on women’s death.

Hindu Law of Inheritance (Amendment) Act, 1929

The next legislation in the direction of extending women’s property rights was the Hindu law of inheritance (Amendment) Act, 1929. It was applicable to persons who belonged to the Mitakshara school and to property of males not held in coparcenary and not disposed by will. This law recognised son’s daughter, daughter’s daughter, sister and sister’s son as among the heritable Bandhus and were placed immediately after father’s father and before father’s brother. This Act was enacted in 1933, according to this Act, Chapter-3 Inheritance Rights of Hindu Women in India and Jammu and Kashmir, the widow was recognised as a coparcener herself having all the rights of survivorship. She could also demand the partition of property. On partition the property she was entitled to get an equal share to that of the son and in absence of a son, the entire share which her husband would have secured. The property could be inherited by her along with her son. The widowed daughter- in –law ranked after the mother. As for the daughters, all acquired equal rights. The widowed daughter had the right of maintenance from her father’s property provided she lived with father since the death of her husband, and if the father-in-law was unable to maintain her.

The Hindu woman’s right to Property Act 1937 conferred new rights on the widow. The general effect of the Act was to put the three female heirs mentioned in Sub- Section (1) of section 3 at the same level as the male issue of the last owner along with proprietary power over which a Hindu had power of disposition by a testament. Such property, in case of a Hindu governed by Dayabhaga School, was his separate property as well as ancestral property in his hand and his share in joint family property and in case of a Hindu governed by the Mitakshara, it meant his separate property. The Act put the widow of a member of the joint family in the place of her deceased husband and the husband’s interest in the joint family property under the Mitakshara, though undefined, vested immediately upon his death in the widow. The Hindu Women’s Right to Property Act 1937 conferred upon the widow the same right of claiming partition of the joint family property in the same way as any other coparcener entitled to do so under the general law. The acquisition by the widow of the same interest as her deceased husband in the joint family did not itself disrupt the Mitakshara joint family and the widow continued as before to be a member of the joint family. Her rights were analogous to that of any undivided male coparcener. All the High courts agreed that she did not by operation of the Act become a coparcener. But it would not be correct to describe her interest as inchoate or imperfect till she claimed partition. She became entitled to the undivided interest as her deceased husband, and took the same interest on her husband. Where she did not enforce partition, the joint family continued as before without any severance of the joint status; the incident of the coparcener continued to apply to all the members including the widow with his revelation that his existence suspended the rule of survivorship, and even then the rule of survivorship continued to operate upon the other coparcener’s and also the interest of the widow was liable to fluctuate by births and deaths in the joint family which continued as before but subject to their statutory rights.

Hindu Succession Act 1956

Section 14 of the Hindu Succession Act 1956 has now affected substantially the interest taken by a Hindu widow under the 1937 Act and improved her limited estate. The Hindu Women’s Right to Property Act of 1937 gave the Hindu widow a right to intestate succession equal to a son’s share in separate property among those governed by Mitakshara and in all property among those governed by Dayabhaga. It also gave her the same interest as her deceased husband in the undivided Mitakshara coparcenary, with the same right to claim partition as a male coparcener. She could hold her share, however, only during her lifetime, after which it went to her deceased husband’s heirs. It was also subject to forfeiture on remarriage.

The Hindu Succession (Amendment) Act, 2005

By retention of the Joint family system and introducing daughters as coparceners, the legislative efforts to usher in gender parity have resulted in abundant confusion. Under the classical law, a female could not be a coparcener, but a daughter born in the family was a member of her father’s joint family. Upon her marriage she ceased to be a member of the joint family as well and joined the joint family of her husband. But on and from the commencement of the Hindu Succession (Amendment) Act, 2005, the daughter of a coparcener shall:

  1. a) by birth become a coparcener in her own right in the same manner as the son
  2. b) have the same rights in the coparcenary property as she would have had if she had been a son
  3. c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener

Article 14 of the Indian Constitution guarantees all its citizens the fundamental right of equality. Article 15 prohibits the state from discriminating on the basis of caste, sex, race, thereby assuring all citizens equal protection by law.  But there is discrimination on laws governing inheritance rights of women, which is because of cultural and religious issues and not based on implementation of law.

But now due to various laws enacted, the inheritance rights which where mentioned in Mitakshara school and Dayabhaga school, Hindu law of inheritance where improvised and some were abolished to benefit the inheritance rights of the women.

 

Image Source