By Ayushi Singhal, NUJS
It is common knowledge that the Indian society is predominantly patriarchal and the preferential rights given to men with respect to property, both movable and immovable, are just another manifestation of the male centric societal structure. Giving women the right to inherit, own, use and dispose of property is a fairly recent phenomenon.
Although this project deals specifically with the right to property of Hindu women, the absolute lack of such rights or the presence of only limited rights regarding property, where women are concerned is common across religions.
The current position on a Hindu woman’s right to property is backed by an interesting history of a broad spectrum of laws, both customary and formal. In the Vedic era, women were treated at par with men, economically. Wives had equal rights over their husbands’ properties. In stark contrast to the Vedic scenario is Manu’s declaration that property should not be granted to the wife, the slave or the minor son.
Wives, however, were not the only victims of such gender-based discrimination as daughters faced similar disadvantages when it came to proprietary interests. Daughters were seldom allowed to inherit their father’s property and in case of the joint family property, their rights were relegated to mere maintenance as against their natal homes. Widows were no better off in their matrimonial homes. Even if women were allowed ownership of property, it was only a life interest, which reverted back to the source on their deaths.
In ancient times, Hindu women, irrespective of their marital status were not deprived of the use of their property. It has been found from Manusmriti that the right of women to hold property was respected.[i] Women’s property rights were improved and defined during the time of eminent jurists like Yajnavalka, Katyayana, and Narada, who strived to promote the idea of women exercising their right to property[ii]. Stridhan, which translates literally to “woman’s wealth” and denotes a type of property unique to women, was a term coined by the Smritikars[iii].
This was a woman’s separate property. Jimutavahana went to the extent of stating that a woman possesses absolute control over her property, even after marriage.[iv] However, this statement on his part was not completely accurate given the actual practice prevalent in those times. Women, although not barred from the enjoyment of their property, were denied absolute control over it.
The rationale behind this was to keep a check on the female population in society. To give women unbridled freedom would allow them to become independent and independence was seen as a highly undesirable trait to be found in a woman. Though women were given the right to their separate stridhan they didn’t enjoy complete control over it, they needed their husband’s consent to dispose of a certain part of their stridhan.
Manu said, “three persons, a wife, a son and a slave are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong.”[v] This was a manifestation of the then prevalent view that women fell in the same category as slaves and chattel of men.
The evolution of the legal stand on the right to property of Hindu women can be traced from the ancient times when customary laws were prevalent to the current era where the written law is the last word in matters of conflict.
This paper shall focus broadly on the various rights and responsibilities, concerning property, of Hindu women. The two broad classes into which women shall be classified for the purpose of this study are Wives and Daughters. While studying daughters’ right to property, I shall take into account both unmarried as well as, married daughters. The issues that shall be highlighted in this paper are as follows.
Whether or not females have the right to inherit property?
If they do, how much is their share in comparison to their male counterparts?
If the right to property accrues to a woman, is it absolute?
THE HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937:
Prior to 1937, there were no codified laws to deal specifically with the Hindu women’s right to property, where disputes arose, they were settled in accordance with the customary practices. In 1937, the Hindu Women’s Right To Property Act was passed after much voicing of discontent over the unsatisfactory condition of women’s rights. In the prevalent socio-legal atmosphere of that time, this Act came as a breath of fresh air for supporters of female empowerment.
However, it was by no means enough to achieve the lofty target of gender equality. 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.” [vi]The ameliorative effects of this legislation was further diluted in 1938 when it was amended to exclude a widow’s interest in any agricultural land.
Under this Act, “a Hindu man’s widow, his widowed daughter in law and widowed granddaughter in law are entitled to inherit to his estate, not only in default of but along with, his male issues.”[vii] The widow in a Hindu coparcenary succeeds to her husband’s claim irrespective of the existence of male heirs. The right of survivorship of his collaterals is hence defeated. However, the claim granted to the widow is a limited one and it is such a limited interest that has come about to be called as a Hindu woman’s estate.
It is incorrectly presumed that a widow has an interest in life in the estate she inherits. Hindu Mitakshara law does not measure estates in terms of time but on the basis of usage of the estate[viii]. A Hindu widow in possession of the estate is entitled to its complete beneficial enjoyment and is answerable to no one as long as she’s not guilty of willful waste[ix]. The peculiarity of this estate is that on the death of the widow, the estate does not pass onto her heirs but to the heirs of the last male owner or the last full female owner with regard to stridhan property, whichever the case might be[x]. The widow herself cannot become “fresh stock of descent”[xi].
Shastric authorities have stated that a widow only inherits a limited interest in her husband’s estate, however, nowhere is it said that similar restrictions are applicable over other female heirs. The class of female heirs which are from another gothra or after marriage shall become of a gothra different from that of the last male owner[xii], take from the male heirs, the property in full as absolute owners. This class includes daughters, children’s daughters and the sisters and daughters of descendants, ascendants, and collaterals within five degrees, who inherit in order of propinquity[xiii].
THE HINDU SUCCESSION ACT, 1956:
The idea of the limited estate as propagated by the Hindu Women’s Right to Property Act was abolished in 1956 by the introduction of the Hindu Succession Act. The Hindu Succession Act was a progressive act that brought about many reforms, the most important being the granting of absolute rights to women, over the property that they held. The benefits of the Act were twofold as held by the Supreme Court in an attempt to put all controversy at rest.
The Supreme Court declared that as under Section 14 of the Act, the disability of women to hold property absolutely was removed. In addition to this, it converted the limited estate of a female owner to an absolute estate irrespective of the fact that the creation of the estate occurred at a point of time before the enactment of the said legislation, which was retrospective in nature.
It has been said that this Act, “abrogates all the rules of the law of succession hitherto applicable to Hindus whether by virtue of any text or rule of Hindu law or any custom or usage having the force of laws in respect of all matters dealt with in the Act. Therefore no woman can be denied property rights on the basis of any custom, usage or text and the said Act reformed the personal law and gave woman greater property rights.”[xiv]
In practice though, this Act is quite biased in favor of male heirs. An example of this gender based discrimination is the fact that in the presence of both male and female heirs, there being an ancestral dwelling house, the female heir cannot ask for partition of the residence until and unless the male heirs ask for their respective shares. Also, the right of residence exercised by the daughter is limited by her marital status, a daughter may claim this right if she is unmarried or a widow or has been divorced from or deserted by her husband. She cannot claim her right to residence if she is happily married to her husband.
Section 14 of this Act provides for the conversion of the limited interest of a Hindu female is into absolute rights. If she gets property from her husband she can sell it and the purchaser gets absolute right in the property, which prior to this Act, she could sell it only for the necessities of the family or to perform religious ceremonies for the benefit of her deceased husband. Section 14 is wide in its ambit.
The legislation has defined women’s property in the widest possible manner. The property includes both movable and immovable property acquired by a female by inheritance, partition, in lieu of maintenance, arrears of maintenance, gift from any person, a relative or not, before or after marriage or by her own skill, exertion, by purchase or by prescription or in any other manner whatsoever and also any such property held by her as stridhanam immediately before the commencement of the Act. Prior to the enactment of this legislation, women were deprived of the right to the alienation of property.
The concept of survivorship lost much of its effect due to this Act, which provided for the devolution of a coparcener’s property unto his mother, widow, and daughter, i.e. his female heirs in addition to his son if he dies intestate. However, section 6 of this Act still retains the Mitakshara coparcenery excluding women from survivorship as a result father and sons hold the joint family property to the total exclusion of the mother and daughter despite providing a uniform scheme of intestate succession[xv].
According to the 174th report of the Law Commission-
“While broadly removing the gender discrimination inherent in Mitakshara Coparcenary. The broad features of the legislation are more or less couched in the same language in each of these Acts. The amending Acts of Andhra Pradesh, Tamil Nadu, and Maharashtra add three sections namely, 29A, 29B, and 29C but Karnataka numbers them as Sections 6A, 6B and 6C of the Act.
These state enactments provide equal rights to a daughter in the coparcenary property and contain a non-obstante clause.[xvi]
Despite the improvements brought about by the Act, it remained predominantly gender discriminatory, especially where inheritance rights of daughters were concerned. It was amended in 2005 to give equal rights to daughters in separate property as well as coparcenary property left by the father. The disability of women inheriting their patrimonial property was taken away by Section 6 of the amended Act.
The right accrued to a daughter in the ancestral property, by virtue of the Amendment Act, 2005 is absolute, except in the circumstances provided in the amended Section-6. The excepted categories to which new Section-6 is not applicable are two, namely, (1) where the disposition or alienation including any partition which took place before 20-12-2004 and (2) where the testamentary disposition of the property was made before 20-12-2004.
From a predominantly male centric set of property rights, the law has evolved over time to give first limited then absolute rights to women where property is concerned. It was the previously held view that giving women the right to property would lead them to have too much freedom and a sense of their own importance that would lead to the eventual breakdown of the societal structure and lead to utter chaos. Such views are now known to be erroneous. The various rights and liabilities of women holding property are as of now at par after the amendment of the Hindu Succession Act 1956, in 2005.
However, the reality is far from the black letter of the law since even now only one in ten women are aware of the rights they are capable of exercising. It is the duty of the legally aware people in society to ensure that this deficiency is remedied. Nevertheless, these laws are a significant step forward in achieving gender equality as envisaged by the framers of our constitution, the founding fathers of our nation.
Formatted on February 20th, 2019.
[i] Kanaka Latha Mukund, Turmeric Land, women’s property rights in Tamil society since early medieval times, XXVII/17,Economic and Political Weekly, WS-2 (1992)
[iii] Mayne’s Hindu law and Usage 840 (1986).
[iv] D Bh IV, I, 18.
[v] Manu, VIII, 416.
[vi] Available at http://newcenturyindianlaw.blogspot.in/2011/02/womens-right-to-property.html (Last visited March 10, 2014).
[vii] Mayne’s Hindu law and Usage 840 (1986).
[viii] Vasonji V Chanda Bibi (1915) 37 All 369 PC
[ix] Renka v. Bhola Nath (1915) 37 All 177
[x] Kery Kolitany v. Moneeram (1875) 13 BLR 5, 53, 76: 19 WR 367
[xi] Mayne’s Hindu law and Usage (1986).
[xii] Bhau V. Ragunath (1906) 30 Bom 229
[xiii] Devcooverbaee’s case (1 Bom HC 130)
[xiv] Available at http://newcenturyindianlaw.blogspot.in/2011/02/womens-right-to-property.html (Last visited March 10, 2014).
[xv] Amrito Das, “Notional Partition, A critique, Section 6 of The Hindu Succession Act 1956’’, J 149 AIR (2004)