Property Rights of women in India - The current scenario and evolution

Though India has become developed in every sense but the mental attitude towards the women or the females have still remained the same in case of inheritance of property. In earlier days mainly in the medieval period i.e. the Vedic era the women were treated at par with the male counterparts and had the right to inherit the properties of their husband. But suddenly the society started treating the women as the weaker sections of the society and with this came a baseless thinking that women cannot protect the property in the same way which the males can. This sudden change in contrast in regard to inheritance of properties by women continued for ages until the per-independence, where the British Government introduced a bill INDIAN SUCCESSION ACT 1925, wherein, the women were given some respect in regard to inheritance of property.  As per the section 33 of the said act the widow has been given right to charge the property of her husband in case of no lineal descendant until the entitlement of Rs.5000/- has been paid to her, but, this doesn’t exclude her from having inheritance upon the other properties of the husband even after the entitlement of such Rs.5000/-. This shows that after so many years of disregard, this sudden change in the law, which superseded the custom which had been followed till this law came to force brought a fresh sense of equality among the genders. The HINDU WOMEN’S RIGHT TO PROPERTY (AMENDMENT) ACT 1938 also provided some relief for the women in case of inheritance of properties of their father and husband but subjected to some limitations. The Act does not confer upon Hindu widow of any interest in agricultural land, succession to shebaitship, in which an element of beneficial or personal interest is normally involved is governed by the provision of the Act. The act applies to moveable properties in foreign countries. The Act does not apply to the property of a Hindu female. The Act applies only when a Hindu dies intestate either partially or wholly. The women can only be a shareholder of the property and can demand for partition but cannot sell her portion or share of property. This shows how conditional relief has only been meted or given to the women until 1956 when this law got repealed and HINDU SUCCESSION ACT 1956 came into force.  HINDU SUCCESSION ACT 1956 though when came into force provided some relief regarding in case to remove gender discriminatory provisions in the Hindu Succession Act, 1956. Under the amendment, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. The daughter shall now have the same rights in the coparcenary property (ancestral property of the Hindu undivided family) as a son. But still the act was male dominant, Section 23 of the Hindu Succession Act which dis-entitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares. Section 24 of the Act which denied rights of a widow to inherit her husband’s property upon her re-marriage has been repealed. This Act has brought about a central amendment which is applicable to all the state governments. Discrimination inherent in the Mitakshara coparcenary under Section 6 of the Hindu Succession Act, as it only consists of male members. The proviso to section 6 of HINDU SUCCESSION ACT 1956 also contains another gender bias. It has been provided therein that the interest of the deceased in the Mitakshara Coparcenary shall devolve by intestate succession if the deceased had left surviving a female relative specified in class I of the Schedule or a male relative" specified in that class, who claims through such female relative. In order to appreciate the gender bias, it is necessary to see the devolution of interest under section 8 HINDU SUCCESSION ACT 1956. The property of a male Hindu dying intestate devolves according to section 8 of the HINDU SUCCESSION ACT 1956, firstly, upon the heirs being the relatives specified in class I of the schedule. However, there are only four primary heirs in the Schedule to class I, namely, mother, widow, son and daughter. The remaining eight represent one or another person who would have been a primary heir if he or she had not died before the propitious. The principle of representation goes up to two degrees in the male line of descent; but in the female line of descent it goes only up to one degree. Accordingly, the son's son's son and son's son's daughter get a share but a daughter’s daughter's son and daughter's daughter's daughter do not get anything. A further infirmity is that widows of a pre-deceased son and grandson are class I heirs, but the husbands of a deceased daughter or granddaughter are not heirs.” Though the HINDU SUCCESSION ACT 1956 had some flaws but still it changed the course from limited ownership of property as per HINDU WOMEN’S RIGHT TO PROPERTY (AMENDMENT) ACT 1938 to absolute ownership. Section 14 of the Hindu Succession Act 1956, makes it clear that any property possessed by a female Hindu (whether acquired before or after the commencement of the Act) becomes her absolute property to be held by her as full owner thereof and not as a limited owner. This section recognizes equality of sexes and elevates the women from subservient position in the field of economy to a higher pedestal. Whatever share or property she received in lieu of her maintenance became her absolute property after 1956. In V Tulasamma vs. V Sesha Reddy, the Hon’ble Apex Court held that: “Besides possessing an existing right of maintenance, a woman in the Hindu family is also conferred right in the family property. It cannot be said that partition deed is something creating a new right in her in so far as the property is not concerned; nor it amounts to acquiring of the property by her by virtue of partition deed when the facts are so, there would be the application of sub-s. (1) Of s.14 and not of sub-s. (2) Of the said section. The Court further held that a widow is entitled to maintenance out of her deceased husband’s estate, irrespective of whether that estate is in the hands of his male issue or other coparceners.” Also in Komalam Amma vs. Kumara Pillai Raghavan Pillai and Ors “Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady’s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1). The HINDU SUCCESSION ACT 2005 (AMENDMENT)ACT is an attempt to remove the discrimination as contained in the amended section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu mitakshara coparcenary property as to sons have. Simultaneously section 23 of the Act as disentitles the female heir to ask for partition in respect of dwelling house wholly occupied by a Joint Family until male heirs choose to divide their respective shares therein, was omitted by this Amending Act. As a result, the disabilities of female heirs were removed. This is a great step of the government so far; the Hindu Code is concerned. This is the product of 174th Report of the Law Commission of India on "Property Rights of Women: Proposed Reform under the Hindu Law". First, the 2005 act, by deleting a major gender discriminatory clause - Section 4 (2) of the 1956 HINDU SUCCESSION ACT - has made women's inheritance rights in agricultural land equal to men's. Section 4(2) excluded from the purview of the HINDU SUCCESSION ACT 1956 significant interests in agricultural land, the inheritance of which was subject to the succession rules specified in state-level tenurial laws. Especially in the north-western states, these laws were highly gender unequal and gave primacy to male lineal descendants in the male line of descent. Women came very low in the succession order and got only a limited estate. The new legislation brings male and female rights in agricultural land on par for all states, overriding any inconsistent state laws. This can potentially benefit millions of women dependent on agriculture for survival. Second, the 2005 act makes all daughters, including married ones, coparceners in joint family property. The 1956 HINDU SUCCESSION ACT distinguished between separate property and joint family property. According to the amending Act of 2005, in a Joint Hindu Family governed by the mitakshara Law, the daughter of a coparcener shall, also by birth become a coparcener in her own right in the same manner as the son heir. She shall have the same rights in the coparcenary property as she would have had if she had been a son. She shall be subject to the same liabilities and disabilities 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. But this provision shall not apply to a daughter married before the commencement of the Hindu Succession (Amendment) Act of 2005. This provision shall not affect or invalidate any disposition or alienation including partition or testamentary disposition of property which had taken place before 20th December, 2004.Further any property to which female Hindu becomes entitled by virtue of above provision shall be held by her with the incidents of coparcenary ownership and shall be regarded, as property capable of being disposed of by her by will and other testamentary disposition. The provision was also made that where Hindu dies after the commencement of the Hindu Succession (Amendment) Act of 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara Law, shall devolve by testamentary or intestate succession under the Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place. Further the daughter is allotted the same share as is allotted to a son. The provision was also made that the share of the predeceased son or a predeceased daughter as they would have got, had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter. Article 14 of the Indian Constitution mandates equality among all citizens, But the Hindus, Muslims and Christians are governed by their own personal laws which includes property rights as well.  The Muslim community doesn’t have any codified law and are governed by Hanafi and Shia School. The Hanafi School only recognizes them as heirs whose relation through deceased are through male. Such as son’s daughter, son’s son and father’s mother. The Shia School on the other hand has no such discrimination. Here deceased through females are also accepted. Under Muslim law the ideology goes that a woman is half the worth of a man, A son takes double the share of a daughter in case of property inheritance. The daughter is the absolute owner of whatever property she inherits. If there is no brother, she gets half a share. It is legally hers to manage, control, and to dispose of according to her wishes. She is eligible to receive gifts from even from those she would inherit from. This is contradictory she can inherit only one-third of the man’s share but can get gifts without any hassle. Till a daughter is not married, she enjoys the right to stay in her parents’ house and seek maintenance. In case of a divorce, charge for maintenance reverts to her parental family after the iddat period (approximately three months) is over. But, if her children are in a position to support her, the responsibility falls on them. In the famous Shah Bano case, the Apex Court held that in case of a divorce, That the responsibility of husband towards maintenance of former wife doesn’t come to even after separation under Section 3 (1Ha) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This period extends beyond iddat as the woman retains control over her goods and properties. In the event of the death of her husband, widow gets one eighth share when children are but will get one-fourth share (if there are no children). If there is more than one wife, the share may diminish to one-sixteenth. A Muslim mother is entitled to inheritance 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 grandchildren, she would get the one-third share. This is the total money or property that a wife is entitled to get from her husband at the time of marriage. There are two types of Maher: prompt and deferred. In the former case, the amount is given to the wife immediately after marriage; in the later, the amount is given to the wife when her marriage has ended, either upon the death of her husband or by divorce. A Muslim cannot give away more than one third of his/her total property through a will. In circumstances where there are no heirs in the estate as prescribed by law, the wife may inherit a greater amount by will. So far as the Christian women is concerned, the inheritance of property by the Christians are governed by INDIAN SUCCESSION ACT 1925. SECTION 2(d) of the INDIAN SUCCESSION ACT 1925, defines who are Christians, which states, "Indian Christian" means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion; Section 30 to Section 33 of the INDIAN SUCCESSION ACT1925 deals with the inheritance of property by Indian Christian women which clearly indicates that as per section 33 of the INDIAN SUCCESSION ACT,1925- Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred. In among Christians the inheritance of property, is being adjudicated by Domicile, as per section 21 of INDIAN SUCCESSION ACT,1925 if a person is domicile of India, marries in India with a person domiciled in India neither party acquires by the marriage any rights in respect of any property of the other party not comprised in a settlement made previous to the marriage, which he or she would not acquire thereby if both were domiciled in India at the time of the marriage. By these terms we can understand that the inheritance by Christian Women, wife, widow can only be done by contract executed before marriage. So, we can say that inheritance among Christian women is contractual. Parsis law of inheritance is also derived from Indian Succession Act 1925, but parsi women are in a far better state than the Hindus, Christians and Muslims. They enjoy far benefits in regards to inheritance than the other religious groups. Parsi women, widow, daughter get equal share of the property as a son gets, i.e. If a Parsi dies intestate all his legal heirs will get the same share of property including the son, except the parents of such deceased person, the parents will get in case of Father equal to half share of the son of the deceased. The mother will get the equal to half share of the daughter’s inheritance out of the deceased person’s estate. But when a Parsi intestate leaves no lineal descendant but leaves widow or widower or a widow or widower of any lineal descendants in that case Widow or Widower but no widow or widower of a lineal descendant Widow or Widower will receive ½ and the Relatives ½. In case of Widow or Widower and also widow or widower of a lineal descendant the Widow or Widower will receive 1/3^rd share and Widow of lineal descendant will receive 1/3^rd share. In case of No Widow or Widower but widow/(s)of a lineal descendant, in case of One widow of lineal descendant will receive 1/3^rd share, in case of more than one widow of lineal descendants each will receive 2/3^rd share and other relatives will get 1/3^rd share in case of one widow of lineal descendant and 2/3^rd share in case of more than one widow of lineal descendants. There has been no differentiation of inheritance by a married daughter in case of parsis as it is in case of the other religions. Rights of Hindu Married Daughter in case of Inheritance of father’s Ancestral Property. In 2005, the Supreme Court had passed a landmark amendment to The Hindu Succession Act of 1956, granting daughters the right to inherit ancestral property along with their male relatives. But now, a 'small' clause has been added to it. A daughter can only hold a right to the ancestral property if the father has died after this amendment came into force in 2005, the Supreme Court rules. In other words, the father would have to be alive till September 9, 2005, for the daughter to become a co-sharer of his property along with her male siblings. Adding that the amended provisions of the Hindu Succession (Amendment) Act, 2005, do not have a retrospective effect, a SC bench comprising Justices Anil R Dave and Adarsh K Goel held that the date of a daughter becoming co-parcener is on and from the commencement of the Act. The Hindu Succession Act of 1956 originally denied women the right to inherit ancestral property, allowing them only to ask for sustenance from a joint Hindu family. After the amendment was passed in 2005, the only restriction to remain was that women could not ask for a share if the property had been alienated or partitioned before December 20, 2004, which is the date the Bill was introduced. But that was until the Supreme Court came up with the latest 'restriction'.   The amendment to the Hindu Succession Act giving daughters equal rights to ancestral property is applicable even for girls born before the law was changed in 2005, the Bombay High Court has said. "Section 6 of Hindu Succession Act, 1956 as amended by the Amendment Act of 2005 is retroactive (taking effect from a date in the past) in operation," a full bench stated on Thursday. "In other words, the provisions of the amended section 6(3) do not and cannot impinge upon or curtail or restrict the rights of daughters born prior to 9 September 2005," the judges said. The Hindu Succession Act, 1956, originally didn't give daughters equal rights to ancestral property. This disparity was removed by an amendment that came into force on September 9, 2005. The issue came up before the bench of chief justice Mohit Shah, judges MS Sanklecha and MS Sonak after conflicting views on the matter expressed separately by a single judge and a division bench. A division bench had opined that the amendment applied to daughters born on or after September 9, 2005. As regards daughters born before 9 September 2005, the judges held that they would get rights in the property upon the death of their father-coparcener (head of a joint family) on or after September 9, 2005. But a single judge disagreed with the view of the division bench and stated that the amendment was retrospective in operation, that it was applicable from June 17, 1956, the date on which the Hindu Succession Act came into force. It would apply to all daughters of a coparcener who are born either before or after September 9, 2005 as well as daughters born before or after June 17, 1956. According to the single judge a daughter, by birth, becomes a coparcener in a Hindu coparcenary in her own right in the same manner as a son, having the same rights in the coparcenary property as she would have had if she had been a son, and subject to similar liabilities. Uday Warunjikar, counsel for one of the petitioners, argued that the amendment was brought into force to remove the inequality between the heirs. "The amendment gives the right to the daughter irrespective of date of birth," Warunjikar argued. Senior counsels Anil Anturkar and Girish Godbole also argued that the amendment was retrospective in nature. However, counsels for the respondents argued that section 6 should be read prospectively and it applied only to the daughters born on or after September 9, 2005. The full bench disagreed with this and stated that the daughters would have equal share in the ancestral property, irrespective of their date of birth. "The amended section 6 applies to daughters born prior to June 17, 1956 or thereafter (between June 17, 1956 and September 8, 2005), provided they are alive on September 9, 2005, that is on the date when the amendment act of 2005 came into force," the judges observed in their order, running into 72 pages. Before the enactment of the Hindu Succession Act in 1956, Hindus were covered by shastric and customary laws that varied from region to region. Under the Mitakshara school of Hindu law, a woman in a joint Hindu family had the right only to maintenance/ sustenance but not to inheritance of property. Consequently, if a partition took place in the coparcenary (joint family) property, then each male coparcener was entitled to a share. But a daughter did not get a share. The daughter would only get a share as one of the heirs on the death of coparcener. Before the amendment of the said Hindu Succession Act, 1956 married daughter never had any share in the ancestral property of her father till the amendment made in the year 2005 as stated above to induct the right of inheritance of married daughter in father’s ancestral property. It is to be noted that married daughter has full right over her father’s self-purchased property in case of father dies intestate, the share is equal as with other heirs.     Rights of Muslim Married Daughter in case of Inheritance of father’s Property. A daughter gets half of whatever share her brother gets. In case she has no brother, she is entitled to a share of half the property. In case of ancestral property of Muslim daughter’s father, she is entitled to 1/3 of her father’s property. In case of unmarried daughter father has to maintain her daughter totally falls upon her parents, she has the right to stay in her parents’ house and seek maintenance. In case of a divorce, charge for maintenance reverts to her parental family after the iddat period (approximately three months) is over. But, if her children are in a position to support her, the responsibility falls on them.   Rights of Christian Married Daughter in case of Inheritance of father’s Property. In Mary Roy v. State of Kerala, the Supreme Court declared that the Christians in the former State of Travancore are governed by the provisions in Chapter 11 of Part V of the Indian Succession Act 1925 since the extension of Part B States (Laws) Act 1951. Consequently, the Christians all over India are brought under the provisions of Section 37 of the 1925 Act which provides that the property of the intestate will be distributed equally among the children after deducting the 1/3 share of the widow. Obviously the Mary Roy verdict ensures equal inheritance rights to Christian women all over India. This article examines the impact of this verdict on the inheritance rights of Christian women in Kerala especially after the repeal of the 1916 Act which was highly discriminatory denying property rights to Christian women. The writer also examines the dubious methods adopted by the Christian Patriarchal Community to circumvent Mary Roy verdict. In order to understand the true impact of this verdict. In order to understand the true impact of this verdict it is better to have a cursory glance on the historical background and the origin of the law relating to Succession of Christians in Travancore. Section 37 of the Act provides for equal distribution of the intestate’s property among the children after deducting the 1/3 share of the widow. The Patriarchal Christian community opposed the introduction of 1925 Act because of the above provisions under Section 37. Hence the Travancore Christian Succession Act 1916 continued to be in force even after the commencement of the Constitution until these discriminatory provisions were challenged by Mrs. Mary Roy in Mary Roy v. State of Kerala. If the widow is still alive, the lineal descendants will take two-thirds of the estate; if not, they will take it in whole. Per capita (equal division of shares) applies if they stand in the same degree of relationship to the deceased. This is as per Sections 36-40 of the Act. Importantly, case law has determined that the heirs to a Christian shall take his property as tenants-in-common and not as joint tenants. Also, the religion of the heirs will not act as estoppel with regard to succession. Even the Hindu father of a son who had converted to Christianity was held entitled to inherit from him after his death. As per Section 48 of  Indian Succession Act 1925, where the intestate has left neither lineal descendant, nor parent, nor sibling, his property shall be divided equally among those of his relatives who are in the nearest degree of kin to him. If there are no heirs whatsoever to the intestate, the doctrine of escheat can be invoked by the Government, whereupon the estate of the deceased will revert to the State.   So, as per the above write up I can only say that, our forefathers or our Indian mentality has taught us one thing i.e men are and will be always superior to the women which our Indian succession of property laws reflect over and over again. And also it is also a fact that we tend to think that a woman when married will always get the property of her husband then why her brother or her paternal family members will share the property with her since she though being a family member is non treated as family member anymore after marriage. So, until and unless such mentality changes laws in regards to women inheritance of property will never change.