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Property Rights of Women

Shreyash Mohta

PROPERTY RIGHTS OF WOMEN IN INDIA

 

The rights of women in India have been curtailed and have been put to great scrutiny. Property rights of women were disallowed and they were said to have absolutely no rights whatsoever after they get married as they would belong to a different family tree after marriage and as such would also relinquish all possible rights they would have after they get married.

 

In India, there are broadly two systems which are followed for the basis of property division

1.     The Mitakshara System       AND

2.     The Dayabhaga System.

 

Under the Mitakshara System, the wife has no claim of partition and cannot demand partition. She can however have a right to get a share in the property if such partition is affected between her husbands and her sons.

Under the Dayabhaga System, the wife cannot claim the above right because partition in such joint property is disallowed. In this case, the father is the absolute owner of the property.

In comparison to the both systems we can find and conclude that The Mitakshara System is more conservative and The Dayabhaga System is more liberal.

The scenario of Property Rights of Women has changed immensely after the year 2005. Before 2005, women did not have as much share of property as a man could have. It is after the amendment of the Hindu Succession Act, in the year 2005 that now women would have a right to share to in property similar to that of a man and nothing less.

However, there is a variety of confusion with this amendment and the clarity of division is found nowhere. Various people have various ideas and advices are divided. This is making it all the more difficult for the normal lay man to understand the concept of this amendment and what it actually brings for women with regards to division or share in property.

 

By women I mean the following three groups:-

1.     Daughters

2.     Wives             AND

3.     Mothers

 

Let us first discuss the property rights of women before 2005

Before the year 2005 women’s property rights were very limited and they did not get equal share in the property.

The old Hindu Law divided property rights of women into the following two broad groups. They are:-

1.     Stridhan        AND

2.     Limited Estate

 

The exact definition of Stridhan is nowhere to be found, but, Smritikars have defined them as those properties which a woman receives by way of gift from her relations.

Stridhan is further classified into two broad groups. They are:

1.     Saudayaka                AND

2.     Non – Saudayaka

Saudayaka refers to gifts of love and affection given by relatives to the woman and over which she has complete rights of alienation.

Non – Saudayaka refers to those gifts over which the woman has no rights of alienation without the consent of her husband. They include the following:

1.     Gifts and bequests from strangers

2.     Property acquired by self-exertion and mechanical arts

3.     Property purchased with Stridhan

4.     Property acquired by compromise

5.     Property obtained by adverse possession

6.     Property obtained in lieu of maintenance

 

In the case of Limited Estate, the woman had rights on the following two properties

1.     Property obtained by inheritance       AND

2.     Share obtained on partition

In both of the above two cases, the female could not:

1.     Alienate the Corpus   AND

2.     On the death of such person, the property would be devolved to the next heir of the last full owner.

With respect to such property the woman had only three powers, namely:

1.     Power to Manage

2.     Power to Alienate      AND

3.     Power to Surrender

This was the old Hindu law. An important step towards property rights of women was The Hindu Women’s Right to Property Act, 1937. It had effects on two things-

1.     Succession

2.     Mitakshara Coparcenary

Effect on Succession: The law on succession focused on the rights of widows. With respect to separate property within the Mitakshara School and all properties in the Dayabhaga School, the Act introduced three widows-

1.     Intestate’s own widow

2.     Son’s widow

3.     Son’s son’s widow

The widow took a share equal to the share of a son and, in default of the son took the entire property. If there were more than one widow, all them together took one share. In the case of Mitakshara joint family property, the widow of a deceased coparcener took the same interest in the property which her husband had in the joint family property at the time of the death.

 

THE HINDU SUCCESSION ACT, 1956

This was the first revolution with regards to women’s property rights. The enactment of this Act, brought a lot of changes. The key highlights of those are given below:

1.     Section 14 of the act abolished women’s limited estate

2.     The laws related to Stridhan were replaced by new laws of succession under sections 15 and 16 of the Act

3.     Stridhan became a women’s absolute property. It included property obtained through inheritance or partition.

4.     The Hindu Women’s Right to Property Act, 1937 was replaced

 

Section 14 gave an absolute right of property to the female for properties acquired before and after the Act.

For properties acquired before the commencement of the Act, there were two conditions-

1.     Ownership of property must vest in her

2.     She must be in possession of the estate when the Act came into force

 

The Supreme Court in Gummalappura v Setra stated that:

‘the word possessed in section 14 is used in broad sense and in the context means the state of owning or having in one’s hand or power’.

It follows from this that if the female cannot claim any title to property, then merely by virtue of her possession, she can become its absolute owner.

It was held in Brajabanjhu v Lubaranithat that:

‘when a widow holds an estate as an heir of her husband, on the coming into force of this Act, it becomes her absolute property’.

The court also resolved all controversies relating to Section 14 in the case of Radha v Hanuman and the present law is –

1.     Section 14 has qualified restrictive application: it converts only those women’s estates into full estates over which she has possession. Possession here means in the widest possible sense when the act came into force.

2.     Section 14 does not apply to those women’s estates over which a Hindu female has no possession when the Act came into force, in such a case the old Hindu law continues to apply.

 

PROBLEMS WITH THE HINDU SUCCESSION ACT RELATING TO WOMEN

The problems in the Hindu Succession Act, 1956 was under the provisions of Section 23 and Section 30 of the Act.

Section 23 of the Act, denied a married daughter the right to residence in her parental home after marriage. The married daughter was allowed homage in her paternal house only if she is

1.     Divorced

2.     Separated       OR

3.     Widowed

It denied the female to claim a right to live in her own house where she took birth if the same was owned and occupied by a son or so to say her brother. This section made the female vulnerable and gave more power to the man. Coping up with this framework of the legislation was being difficult with the coming days.

Section 30 of the Act, allowed any Hindu to dispose of any property by way of will or by any other testamentary disposition, any property which is capable of disposition [including the undivided interest in a Mitakshara coparcenary] in accordance with the provisions of the Indian Succession Act. If this is allowed to stand, then the right of daughter and widow can be diminished at will.

 

 

THE 174th LAW COMMISSION REPORT

The Law Commission Report discussed in details the following

1.     Discrimination with respect to women under the Hindu Succession Act, 1956

2.     The requirement to abolish Coparcenary      AND

3.     Woman being a part of Coparcenary

RECOMMENDATIONS OF THE LAW COMMISSION

The Law Commission provided the following recommendation’s

1.     It made the daughter a Coparcener                            [2005 Amendment]

2.     Recommended to delete Section 23 of the Act         [This is Pending]

However, the committee failed to address the issue under Section 30 of the said Act. It also overlooked the arbitrariness’ of the provision and this in my opinion is a huge blunder. The commission overlooked Section 30 which needed attention and amendment at the earliest. 

 

THE CHANGES AFTER 2005 AMENDMENT

Now, let us discuss the changes in the property rights of woman which the 2005 Amendment has brought.

The Amendment has affected or changed the property rights for the following three people.

1.     Daughters

2.     Wives

3.     Mothers

PROPERTY RIGHTS OF DAUGHTERS

The daughter’s now have the following rights after amendment of 2005

  1. Daughters now have an equal right of inheritance as that of sons in their father's property.
  2. Daughters also have a share in their mother's property.
  3. After The Hindu Succession (Amendment) Act, 2005 came into force it removed gender discriminatory provisions in the Hindu Succession Act, 1956 and gave the following rights to the daughters.
  4. The daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son;
  5. The daughter has the same rights in the coparcenary property as she would have had if she had been a son;
  6. The daughter shall be subject to the same liability in the said coparcenary property as that of a son;
  7. The daughter is allotted the same share as is allotted to a son
  8. A married daughter is not entitled shelter in her parents’ house, nor maintenance, charge for her being passed on to her husband. However, she has a right of residence if she is deserted, divorced or widowed.
  9. A woman has absolute rights over any property that she has earned or gifted or willed to her, provided that she has attained the age of majority. She is free to dispose of the same by way of sale, gift or will according to her wishes.

 

PROPERTY RIGHTS OF WIVES

The wives now have the following rights after amendment of 2005

  1. A married woman has an exclusive right over her own and individual property. Unless she gifts it in part or wholly to anyone. She is the sole owner and also the manager of her assets whether they are earned, inherited or gifted to her.
  2. She is entitled to maintenance, support and shelter from her husband, [if the husband belongs to a joint family, then from the family].
  3. In case of partition of any joint family estate, between her husband and her sons, she is entitled to get an equal share as any other person.
  4. Similarly, upon the demise of her husband, she is entitled to an equal share of his portion, together with her children and his mother.

 

PROPERTY RIGHTS OF MOTHERS

The mothers now have the following rights after amendment of 2005

  1. She is entitled to claim maintenance from her children who are not dependents.
  2. She is also a Class I heir.
  3. A widowed mother shall get an equal share in property if a partition of joint family estate takes place among the sons.
  4. All the property owned by her may be disposed by sale, will or gift at her own will.
  5. If she dies intestate, her children shall inherit her property equally, regardless of their sex.

 

 

 

CONCLUSION

 

Though the amendment of 2005 has brought a lot of changes in the property rights of females and has done fair bit of justice to the inequality of distribution which was present previously, in my opinion there are still some issues which need to be addressed to get proper value of such amendments. The changes have taken place to give women equal rights and to maintain the status quo.

However, with Section 23 of the Act still being in force and Section 30 of the Act being non-addressed by the 174th Law Commission certain discriminations can still take place.

It is only after the deletion of Section 23 of the Act and by removing the Arbitrariness of Section 30 of the said Act can we give more rights to daughters and women.

 

 

 

 

 

 

 

 

 

 

 

1 Comment

Pavamani April 11, 2019
Precise and pointed.

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