History of Indian Womens' Right to Property

The legal reforms have not been adequate to give all Indian women a right to property on the same terms as male – Do you agree with the statement?

Introduction

Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself.This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu Family. [1] This discrimination was so deep and systematic that it had placed women at the receiving end.

Throughout Indian history, the framing of all property laws have been exclusively for the benefit of males and women have been treated as subservient and dependent on male support. The Law Commission held that the right to property is important for the freedom and development of a human being. Prior to the enactment of the Hindu Succession Act, 1956, Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis.

Earlier, a woman in a joint Hindu family had a right to sustenance, but not in the control and ownership of property. As the prevalent Mitakshara system was patrilineal, the woman was not even given a birthright in the family property like a son. No female member was allowed to be a coparcener. The property devolved according to survivorship, so with every birth and death, the share of every other surviving male either got diminished or enlarged. Females however, were allowed to owe property via succession, but this property should have been the separate property of the benefactor. [2] Therefore, even after fifty years of Independence, a woman was still neglected in her own natal family as well as in the family she married into because of blatant disregard and unjustified violation of these provisions by some of the personal laws.

With these points in mind, the Law Commission, in its 174th Report recommended amendments, mainly in § 4 and 6 which have been implemented in the The Hindu Succession (Amendment) Act, 2005 along with some other finer adjustments.

The scenario of the position of women as regards property in Hindu law

The proprietary (inheritance) position of women in Hindu law must be determined by it’s rules concerning the dominion of women over things or the equivalent of things. There are several modes by which such dominion may be acquired. In Ancient law, Manu [3] mentions seven lawful means by which property may be acquired by a woman as the seven lawful modes of acquiring property:

inheritance

finding

friendly donation

purchase conquest

lending at interest

the performance of work

and the acceptance of gifts from virtuous men.

The early legal conceptions relative to the inheritance of women in Hindu law were furnished by the Vedas which represent the first phase in the evolution of Hindu Jurisprudence. One of the fundamental principles of Hindu law of inheritance has been the general exclusion of the female sex. There is a text of the Vedas which is ample authority for the general exclusion of women from inheritance. A Vedic text concerning inheritance goes as follows: Nirindriya hyadayadah strio nritam [4] which means devoid of prowess and incompetent to inherit, women are useless.

Today, the descriptions of property that may be acquired by a Hindu female [5] are:

gifts and bequests from relations

gifts and bequests from strangers

property obtained on partition

property given in lieu of maintenance

property acquired by inheritance

property acquired by mechanical arts

property obtained by compromise

property acquired by adverse possession

property purchased with stridhana or with savings of income of stridhana.

property acquired from sources other than those mentioned above.

§ 3 of The Hindu Succession (Amendment) Act, 2005 substituted § 6 of the Hindu Succession Act, 1956. The earlier section said that when a male Hindu died after the commencement of the Act, then his property would devolve by survivorship upon the surviving members of the coparcenary if he had an interest in a Mitakshara coparcenary property and not in accordance with the Act. Vide clause (3) of section (6) of the amended act, the property shall by testamentary or intestate succession and the property shall be deemed to have been divided as if a partition had taken place. Now the substitution gives rights to the daughter of a coparcener. The amendment allows the daughter to become a coparcener by birth in her own right in the same manner as sons. It allows her to have the same rights in the coparcenary property as she would have had if she had been a son. With the added power, have come some added responsibilities. Therefore, such daughter will be subject to the same liabilities in respect of the said coparcenary property as that of a son. Moreover the section stipulates that any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. Clause (2) of section 6 gives the power to a Hindu female holding a title to such coparcenary property with the incidents of coparcenary ownership to dispose of the property by testamentary disposition.

Other plus points of the reform are that the daughter is allotted the same share as a son [6] , the share of the pre-deceased son or daughter will be allotted to the surviving child, be it male or female, of such pre-deceased son or daughter [7] , and the share of the pre-deceased child of a pre-deceased son or daughter shall be allotted to the child, be it male or female, of such pre-deceased child of a pre-deceased son or daughter irrespective of whether he was entitled to claim partition or not [8] . Moreover, § 30 of the Hindu Succession Act has been amended to allow for the testamentary (by will) disposition of any property which is capable of being so disposed by a male as well as a female in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hindus.

Therefore, the rights of women as regards property have been duly addressed after the 2005 reformatory amendment. Some scholars on the other hand point out that these reforms go beyond addressing the grievance of women and instead met out reverse discrimination for males by not including the son’s daughter’s son (SDS) and the daughter’s son’s son (DSS) within the Class I heirs. The 204th Law Commission Report, 2008 states that there is no basis or justification for this omission. A reverse discrimination against the male descendants has been created and it suggests that this discrimination be rectified.

The scenario of the position of women as regards property in Muslim law

Quranic laws of inheritance are extraordinarily specific. Prophet Mohammed said “Learn the laws of inheritance, and teach them to the people; for they are one half of the useful knowledge.” [9] However, as Muslim law is an uncodified law, there are rampant anomalies, ambiguities and discrimination against women therein.

There is blatant discrimination in the law of succession in muslim law. The Quoranic verse states that “[t]he male shall have the equal of the portion of two females . . . .” [10]

A daughter who is a Quaranic heir takes her share as a residuary in presence of son, whose share is double because share of each son has to be double of each daughter. [11]

Under Hindu law, all persons who have some interest in the property are necessary parties to a suit, but this is not the case in Muslim law.

Under muslim law, both Sunni as well as Shia, a daughter is entitled to succeed to the property of the parents, yet there are customs [12] and statutes, [13] the operation of which excludes her from inheritance. Such customs and statutes, though at variance with the Quaranic principles, are valid and treat daughters as non-existent at the time of opening of the succession. In Jammu and Kashmir, in some communities, a daughter can succeed only in the absence of all male agnates of the deceased, [14] while in others she can inherit only if she is a ‘Khananashin’. [15] A muslim daughter is also not entitled to inherit the watan land under the Watan Act 1886 (Bombay). The Oudh Estates Act 1869 that follows the rules of primogeniture for devolution of talaqdari properties also excludes daughters and her heirs. [16]

Also the general rules for succession in Sunni law are prima facie unjust. A woman/daughter can never inherit more than one third of the property. The son gets a double portion compared to the daughter. Each son’s son will take double the share of each son’s daughter. The full sister does not get a residue until there is an absence of other residuaries namely, the son, the son’s son (h.l.s.), father, true grandfather (h.h.s.) and full brother. And a consanguine sister would only get a residuary share if a consanguine brother were not present, instead of inheriting with one.

Even as sharers, women are not on the same terms as males. A mother gets a ⅙th share but if a husband or a wife and the father are present, then instead of getting ⅓rd share, she only gets ⅓rd of what remains after deducting the wife/husband’s share. There is also great discrimination between the son and the daughter. The son gets a share as a residuary whereas the daughter inherits as a sharer in the absence of a son.

This is not the tip of the iceberg but encapsulates the whole of the inequality prevalent in the laws of succession of Islam.

Conclusion

Under Muslim law, from what has been discussed above, it is apparent that women are treated below males and they do not have the same rights to property as males. There are no two ways about the fact that they should only be allowed to inherit half of what their male counterparts are allowed to inherit. For it is written in the Quoran that the male shall inherit the same as two women. As it is holy law, we cannot foresee any law reforms in the near future that codify muslim law and bring the women at par with the males. Under Hindu law however, the scenario is different. It must be appreciated that there are no differences in the right to hold property for a male and a female in Hindu law after the 2005 Amendment of the Hindu Succession Act, 1956. All women are treated at par with their male counterparts as far as Hindu law is concerned. Daughters, whether married or unmarried, are coparceners in the ancestral (joint) family property. They can inherit through intestate as well as testamentary succession. They are also allowed to hold property in all forms and by all means as males.