Various Property Rights of Women in India – a Study

The property rights of women empower them and cater towards the economic development of the society. “Property” means the right to possess anything that is owned by a person or legal entity. It can be movable or immovable, tangible or intangible, obstructed and un-obstructed called as ancestral property and self-acquired property. It also includes property acquired by way of succession, survivorship through will, lease, mortgage, charge, sale, gift, exchange, stridhan and women’s estate and partition. The social development is not possible without the economic upliftment of women. Property plays a vital role in this. Property rights is also a bunch of human rights and it includes all the things which are necessary for the development of an individual. ‘Educational attainment’, economic participation, decision-making power, self-consciousness, and property all are the key constituents in ensuring the empowerment of women. But here, matter of property rights of women will be discussed.

Discrimination of women in various forms is found in every society in varying degrees. It is manifested in various domains of life and activity: economic, social, political and religious. In India, almost half of the population are women. They are being discriminated, and have suffered and are suffering silently in the even most of the civilized societies. For centuries women were not treated equal to men in many ways. They were not allowed to own property or they did not have a share in the property of their parents. Now that we have come out of these dark days of oppression of women and there is a need for strong mentality to fight for the rights of women and to ensure that they get all the rights which men have.

Democratic decentralization and rule of gender justice breaks the male bias thereafter social change of the society also dismisses the patriarchal notion and creates a new dimension of society. The women right to property is considered very much to be a part of such new dimension.

It is time to forget that men are the only holder of the property, women have the same rights in the property. Above mentioned these factors prompted the legislature to make laws to give women their due share. Now we discuss the matter that how does law protect and give an equal life chances for women.

Provisions under Constitutional Law:

The property rights of women are protected by the Constitution, in its Preamble, Fundamental duties, Fundamental Rights and Directive Principles.

-          The Preamble to the Constitution resolved to secure all its citizens, including equality of status and of opportunity.

-          Article 14 of the Constitution ensures that the State shall not deny to any person equality before law.

-          Article 15(1) prohibits discrimination against any citizen based on religion, race, caste, sex or place of birth.

-          Article 15(3) permits ‘protective discrimination’ in favour of women.

-          Article 19 and 22 provide a scheme of right to freedom and personal liberty.

-          Article 39A provides that women equally have the right to an adequate means of livelihood.

-          Article 44 ensures the uniform civil code. This Article also protects the property right of women.

-          Article 300A provides that “No person shall be deprived of his property save authority of law.” This is a Constitutional right which has been given a status of a basic human right.

Property Rights under Hindu Law:

In the entire history of Hindu law, women’s right to hold and dispose of property has been recognized and before 1956, the property of women was divided into two heads – first, is Stridhan and other is Women’s estate mostly depends upon the source from which it has been obtained. The enumeration of Stridhan can be as follows:-

a)      Gifts and bequest from relations,

b)      Gifts and bequests from strangers,

c)      Property acquired by self-exertion and mechanical arts,

d)      Property purchased with Stridhan,

e)      Property acquired by compromise,

f)       Property obtained by adverse,

g)      Property obtained in lieu of maintenance,

Similarly, women’s estate also has the following forms:-

·         Property obtained by inheritance

·         Share obtained on partition

But under Hindu joint family system property rights were within the hands of male members of family. Women had no rights and it was the duty of male members to administrate the property of the whole family and women has not enjoyed any freedom for expression of opinion regarding the property administration and in the matter of Hindu women’s coparcenary rights.

Coparcenary is a narrower body of persons within a joint family and consists of father, son, son’s son, son’s son’s son. Mulla defines coparceners as “the three generation next to the holder in unbroken male descent”.

In Venugopala Vs Union of India, AIR 1969 SC 1094, it was observed that the Mitakshara concept of coparcenary is based on the concept of birth right of son, son’s son and son’s son’s son.

In Mitakshara coparcenary no female except the daughter has any interest by birth in joint family property. She has no right of survivorship or partition. It means that no female can be a coparcener.

Under Dayabhaga School, a female can also be a coparcener but a coparcenary cannot start with females. If a male dies leaving behind two widows or two daughters they will succeed his property but will not constitute a coparcenary.

Women are no inferior to men and hence should have equal rights as men. To achieve this equality with amending our laws and one of the most effective change has come from changing our property rights and a lot of improvement have been made in the existing laws such as :-

a)      The Hindu women’s Rights to Property Act,1937

b)      Hindu Succession Act, 1956

c)      Hindu Succession Amendment Act,2005

The Hindu Women’s Right to Property Act, 1937 was the first codified law for Hindu women, which deal specifically with the Hindu women’s right to property. The act introduced three widows viz. intestate’s widow, widow of a pre-deceased son and the widow of a pre-deceased son of a pre-deceased son as heirs of a Hindu male though it gave them only limited estate. It also gave these widows a share in the undivided interest of a Mitakshara coparcener. The Act was not applicable if the deceased had disposed of his property by will. It was also not applicable to agricultural lands.

Now, we introduce the matter of Hindu Succession Act, 1956. It is an act of India enacted to amend the codified law relating to intestate succession and testamentary succession and testamentary succession among Hindus, Buddhists, Jains and Sikhs.

The Act lays down a uniform and comprehensive system of inheritance and succession into one Act. The Hindu women’s limited estate is abolished by the Act. Any property possessed by Hindu female is to be held by her absolute property and she is given full power to deal with it and dispose it of by will as she likes.

The new law of succession to women’s property has been laid down in Section – 6, 14, 15,16, 23, and 24. But the Hindu Succession Act, 1956 has undergone a lot of changes by its amendment which is recognised as Hindu Succession (Amendment) Act, 2005. The provisos of Sections – 6, 23, 24 are mainly amended which will be discussed along with other provisos.

Section – 14:

According to Sec – 14 of Hindu Succession Act, 1956 any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as limited owner.

In Chowdhury Vs. Ajudhia , AIR 2003 NOC 126 (HP) it has been observed that any property possessed by a Hindu female, irrespective of how it was acquired becomes her absolute property after coming into force of this Act in view of the operation of Section – 14(1).

Section- 15 & 16:

The objects of Section 15 & 16 are to ensure that Hindu female is an owner of her property in the same way as any other individual can be owner of his property, subject to two basic limitations –

a)      she cannot ordinarily alienate the corpus and

b)      on her death it develops upon the next heir of the last full owner.

Section – 6:

A bench of Justices A.K. Sikri and Ashoke Bhushan said the HAS 1956, as amended in 2005, holds that a daughter would be a coparcener in the family’s ancestral property since birth, having the same rights and liabilities as a son. It was settled in Prakash V. Phulavati (2016) 2 SCC 36.

Section – 24:

After 2005, a remarried widow can inherit the property even if they remarried.  After coming into the force of the Hindu Succession Act, the widow becomes the absolute owner, subsequent remarriage would not ………. her. [Cherotte Sugathan v. Cherotte Bharathe, 2008 SC 1467]

Section- 23:

After 2005, Section 23 lays down that married or unmarried daughters have the same right to reside in and to claim partition of the parental dwelling house same as son.

Property Rights under Muslim Law:

In India, Muslims do not have classified property rights and they are governed by the Hanafi and Shia school. A large part of Muslim personal law is still uncodified and most of the legal decision pronounced by the courts based on the norms mentioned in Quran and Hadith.

While Hanafi School recognises only those relatives as heirs whose relation to the deceased is through a male, on the other hand the Shia school recognises those relations which are related to the deceased through a female are also accepted.

Islamic law also provides financial security for the Muslim women in following ways and these property is legally her manage, central and to dispose it off as and when she desires.

The Mahr:

There are two types of Mahr. Prompt and Deferred. Mahr is the total money or property that a wife is entitled get from her husband at the time of marriage.

The Wasiyat (Will):

A Muslim cannot give away more than one third of his/her total property through will. If there are no heirs in the estate as prescribed by the law the wife may inherit a greater amount by will.

Inherited Property:

According to Muslim law a woman is entitled to inherit property as a daughter widow, grand-mother, mother, or son’s daughter.

Daughter:

A Muslim daughter has the rights to her father’s property. Her share of the inheritance may vary according to the situation –

a)      If the daughter is only child, she has no brother or sister (heirs who are descendants), then she has a half of the legacy of the deceased.

b)      If there is more than one daughter - two or more and the deceased has no male children, then their share is two thirds.

c)      If there are other male heirs who are descendants of the deceased (one or more), then they are to be given the remainder after each person who is entitled to a share has been given that share. Her share is equal to one-half of her brother’s share (‘to the male, portion of equal to that of two females’), whether the children include both males and females. The male takes a share equal to that of two females. The male takes a share equal to that of two females.

Wife:

A wife gets Mahr from her husband at the time of marriage and a widow gets the one-eight share (in case there are children) but will get one-fourth share (if there are no children). If there is more than one wife, the share may come down to one-sixteenth.

Mother:

A Muslim mother is entitled to inherit from her children, if they are independent. She is eligible to inherit one-sixth of her dead child’s property if her son is a father as well. In the absence of grand-children, she would get the one-third share.

Grand-mother:

The grand-mother also will get one-sixth the share of the total property if there is no father/mother or grand-father.

Gift:

It is also a property right of Muslim women. She can inherit only one-third of the man’s share but can get whole property as gift without any hassle.

Conclusion:

            India being a vast country and the general literacy rate of women showing a dismal picture, they are not aware of the various rights that the Constitution or customary law or the codified law has provided to them. Even if they do know them, they do not know how to implement them at their disposal. Where it is aptly said that the true progress of a society can be measured by the economic independence and development of the women in that society, our country lacks behind many countries in this respect since till date the women are seen to be 'second class citizens’ in majority of Indian culture and practices. To change the scenario, not only a conscious and concerted development in the conditions of the women in the fields of economic, political and social atmosphere is required, but also the legal framework has to be strengthened and made working infallibly.

Reference:

1.      Modern Hindu Law; Diwan, Dr. Paras; Allahabad Law Agency, 2015 Edition;

2.      Text Book of Mohammedan Law; Aqil Ahmad; Central Law Agency, 2015 Edition;

3.      Constitutional Law of India; Pandey Dr. J. N.; Central Law Agency, 2015 Edition.

 

~ ​Riya Das, Law student of Hooghly Mohsin College.