Abstract
The right to property or right to own property is often classified as a human rights for natural persons regarding
their possessions. In all human rights instruments, either implicit or express
restrictions exist on the extent to which property is protected. Article 17
of the Universal Declaration of Human Rights (UDHR) enshrines the
right to property as follows:
1. Everyone has the right to own property alone as well as in
association with others.
2. No one shall be arbitrarily deprived of his property.
The Hindu Succession Act is pioneer legislation in respect of proprietary rights of woman against Hindus. By incorporating Section 14 in the Act, the narrower and restrictive connotations of the term ‘Stridhan’ have been replaced by a wider and comprehensive meaning with a view to recognize her absolute proprietary rights and to confer full title upon her to this effect. Prior to the passing of the Act, despite some vagrant legislative attempts for improving the social and economic status of the women nothing significant could be achieved and hence it was need of the hour to bring about some radical changes in the law in this direction.
The
Hindu Succession (Amendment) Act, 2005 amended Section 6 of the
Hindu Succession Act,1956 to remove the discrimination against women in
relation to ownership rights. In this research, an attempt has been made to
highlight the current status of women in land ownership and inheritance rights,
their position in the past and the initiatives taken on administrative and
judicial level to improve the same. This paper also attempts to recognize the
problems in realizing the objective of the Hindu Succession (Amendment) Act,
2005 and suggest solutions, if required.
Keywords:
- Property, Women, Rights, Hindus.
INTRODUCTION
The Land rights of women in India have been subject to struggle against the status quos and the progressive forces of the nation. These are unequal and unjust; while they have come a long way still the women in India get fewer rights than those of men.
Home to diverse religions, to date, India has failed to bring in a uniform civil code. Therefore every religious community continues to be governed by its respective personal laws in several matters – property rights are one of them. Hindus, Sikhs, Buddhists and Jains are governed by one code of property rights codified only as recently as the year 1956, while Christians are governed by another code and the Muslims have not codified their property rights, neither the Shias nor the Sunnis. Also, the tribal women are governed for their property rights as per their customs and norms. To complicate it further, under the Indian Constitution, both the central and the state governments are competent to enact laws on matters of succession and hence the states can, and some have enacted their own variations of property laws within each personal law. Women represent 43% of the agriculture labour force. Yet they rarely own the land they are working on, have tenure securities or control over the land. Women often have limited decision-making power and control over how to use the land or its outputs.
The Constitution of India under Article 14 provides for the right to equality. Article 15 states that there shall be no discrimination in the state. Ironically, this has not been the case with respect to property rights pertaining to women despite many attempts. This paper highlights the historical background of these rights, as they stand today and the challenges ahead.
The Land rights of women in India have been subject to struggle against the status quos and the progressive forces of the nation. These are unequal and unjust; while they have come a long way still the women in India get fewer rights than those of men.
Home to diverse religions, to date, India has failed to bring in a uniform civil code. Therefore every religious community continues to be governed by its respective personal laws in several matters – property rights are one of them. Hindus, Sikhs, Buddhists and Jains are governed by one code of property rights codified only as recently as the year 1956, while Christians are governed by another code and the Muslims have not codified their property rights, neither the Shias nor the Sunnis. Also, the tribal women are governed for their property rights as per their customs and norms. To complicate it further, under the Indian Constitution, both the central and the state governments are competent to enact laws on matters of succession and hence the states can, and some have enacted their own variations of property laws within each personal law. Women represent 43% of the agriculture labour force. Yet they rarely own the land they are working on, have tenure securities or control over the land. Women often have limited decision-making power and control over how to use the land or its outputs.
The Constitution of India under Article 14 provides for the right to equality. Article 15 states that there shall be no discrimination in the state. Ironically, this has not been the case with respect to property rights pertaining to women despite many attempts. This paper highlights the historical background of these rights, as they stand today and the challenges ahead.
Review
of Literature
Valera et. al (2018) have highlighted the gaps between the rights of men and women and it seeks to analyze the effects of having women’s name on the land title on their participation in a large set of household decision-making in India, where land property is typically family governed, and where preexisting norms may bias against women’s land ownership.
Valera et. al (2018) have highlighted the gaps between the rights of men and women and it seeks to analyze the effects of having women’s name on the land title on their participation in a large set of household decision-making in India, where land property is typically family governed, and where preexisting norms may bias against women’s land ownership.
Sida
(2015) promoted women’s right to land in partner
countries in the processes of policymaking, drafting, implementation and
enforcement of new legislation.
Achamyeleh Gashu Adam
(2019) has recommended that besides to land
certification and registration programs, awareness creation on the equality of
men and women should be given more emphasis so as to minimize biases from the
community and to ensure women’s equal rights on the land.
Dr. (Smt.) Rajeshwari M. Shettar (2015) concluded by an observation that access to Education, Employment and Change in Social Structure is only the enabling factors to Women Empowerment.
Dr. (Smt.) Rajeshwari M. Shettar (2015) concluded by an observation that access to Education, Employment and Change in Social Structure is only the enabling factors to Women Empowerment.
Objectives
- To know the land rights of women and to know about the manner of inheritance.
- To know the importance of land rights in socio-economic empowerment of women
- To know the drawbacks of prior acts.
HISTORICAL
BACKGROUND
Male domination started in the ancient period. Slowly, the patriarchal societies dominated the matriarchal societies. So the surname was carried on the name of the father. If a man died, his property was distributed among his sons, father and other male relatives. Gradually, women were ignored and were made as to the weaker and dependent gender. Women were treated as the property of the men. Women’s independent existence and their freedom trespassed. Their property rights were seized by men. In succession, only men were recognized as the legal heirs. Women were left without property and became socially the weaker section. Their position was no better than that of slaves since matriarchal societies were secluded.
Male domination started in the ancient period. Slowly, the patriarchal societies dominated the matriarchal societies. So the surname was carried on the name of the father. If a man died, his property was distributed among his sons, father and other male relatives. Gradually, women were ignored and were made as to the weaker and dependent gender. Women were treated as the property of the men. Women’s independent existence and their freedom trespassed. Their property rights were seized by men. In succession, only men were recognized as the legal heirs. Women were left without property and became socially the weaker section. Their position was no better than that of slaves since matriarchal societies were secluded.
In
Hindu tradition, the husband and the wife should be the joint owners of the
household and property. The husband vowed to their wives that he would never
infringe the rights and interest of his wife in economic matters. The theory of
the joint ownership of the couple had kept the wife at a minor advantageous
position. By the time individuals and coparceners could assert their individual
rights in the estate of the family, the husband was to be denied and it became
very difficult for jurists to invest the wife with any substantial rights as
against the husband. The joint ownership of the husband and the wife were not
practically applied. In effect, the husband was the sole owner of the family
property and the wife had no legal remedy if he proceeded to misuse it and
denied her right to maintenance or a share. It was only with reference to
immovable property that Hindu society, for a long time, didn’t give full or
exclusive ownership to the wife. As far as movable property like ornaments,
jewels, costly apparel etc., was concerned, a woman’s right to own, it was
recognized at a very early date. All this property went under the category of stridhana
or women’s special property.
The
birth of a girl child was not welcomed with happiness during the Vedic age.
Before being married women were under the control of the father and after she
was under the control of husband and his family. Women come under the control
of their brothers if her father dies, provided the brothers had undertaken to
maintain her. Otherwise, she had to live on her own. Perpetual tutelage of women
is of later origin. The social or familial status of the daughter was fairly
satisfactory in the early Vedic period. Women were educated like boys and had
to pass through a period of brahmacharya. Instances of GargiVacaknavi and
Maitreyi, of course, prove that education was imparted to females, and some of
them attained to rare intellectual heights. Daughters did not have any right to
hold, acquire or dispose off property. It simply means that she did not have
legal rights in the early Vedic times. But the daughter living in her fathers’
house throughout her life got a share in his property. However, she could not
claim any share with her brothers because it has been laid down in the Rig Veda
that a son born in the family does not transfer wealth to the sister. Married
daughters living with their husbands could inherit from their fathers only when
they had no brother. Wife in the Vedic period suffered disability of not
having any legal status with respect to the property. She could neither hold nor
inherit property.
Daughters
did not have any right to hold, acquire or dispose off property. She did not
enjoy any legal status in the Rig Vedic times. Daughters were looked upon as
burdens. Special ceremonies were performed with the object of avoiding the
birth of a girl. The social and familial position of daughters deteriorated in
the age of Smritis and Commentaries. Thus females were not considered to be
equal to males in respect of property rights.
Post
Vedic age:
During the post-Vedic period, there were slow changes in the position of women. The proprietary right of the wife continued to be unrecognized, the only exception was of the marriage gifts of movable property. But, Manu, has said regarding the legal status of the wife that she had no proprietary right, “a wife, a son, a slave, these three are declared to have no property;” the wealth which they earn is acquired for him to whom they belong. The reason behind this was that wife had no separate entity of her own apart from her husband. As they were considered to be a mere viewer in the eyes of law. Therefore, the wife does not possess separate ownership. She had no rights over the property of her husband during his lifetime beyond the rights of maintenance and residence. Although the right to property of wife was not recognized. Marriage during the Vedic period was considered to be indissoluble.
During the post-Vedic period, there were slow changes in the position of women. The proprietary right of the wife continued to be unrecognized, the only exception was of the marriage gifts of movable property. But, Manu, has said regarding the legal status of the wife that she had no proprietary right, “a wife, a son, a slave, these three are declared to have no property;” the wealth which they earn is acquired for him to whom they belong. The reason behind this was that wife had no separate entity of her own apart from her husband. As they were considered to be a mere viewer in the eyes of law. Therefore, the wife does not possess separate ownership. She had no rights over the property of her husband during his lifetime beyond the rights of maintenance and residence. Although the right to property of wife was not recognized. Marriage during the Vedic period was considered to be indissoluble.
Like
wife, widow had no right in the property. She could live in the joint family
and receive maintenance; the desire for her husband’s share of property was not
recognized. The case of a widow is alternative, as there is no one to look
after her as daughter, wife or mother and she was not recognized as heir to her
husband.
Age
of Smriti:
This Smriti period witnessed the conferment of certain rights on female heirs by Manu, YajnaValkya, Brahaspati, Narada, the Hindu lawgivers and Smiriti writers in the order of succession. The Smrithikars right from Gautama and Manu in around 5th to 3rd century B.C, acknowledged a concept of ownership which they called stridhana- a woman’s exclusive property. Moreover, Manu admitted widow, daughter and mother in the order of succession. Brahaspati emphasized the right of succession to daughters and wives. Naradha also recognized the right of daughter. The Dharma sutra of Gautama also throws ample light on the property right of women. Kane has quoted some passage from the Vedas in support of his view that women’s separate property was absolutely enjoyed by her, yet it is possible to trace two entirely different views which is not inconsistent lines of thought. On the one hand, woman was assigned a glorious rank and on the other hand, she was treated incompetent to hold property of her own. But at the same time, this right of inheritance was made subject to certain conditions such as chastity and absence of remarriage. After the Smiriti period, the right of succession was embodied in the commentaries.
This Smriti period witnessed the conferment of certain rights on female heirs by Manu, YajnaValkya, Brahaspati, Narada, the Hindu lawgivers and Smiriti writers in the order of succession. The Smrithikars right from Gautama and Manu in around 5th to 3rd century B.C, acknowledged a concept of ownership which they called stridhana- a woman’s exclusive property. Moreover, Manu admitted widow, daughter and mother in the order of succession. Brahaspati emphasized the right of succession to daughters and wives. Naradha also recognized the right of daughter. The Dharma sutra of Gautama also throws ample light on the property right of women. Kane has quoted some passage from the Vedas in support of his view that women’s separate property was absolutely enjoyed by her, yet it is possible to trace two entirely different views which is not inconsistent lines of thought. On the one hand, woman was assigned a glorious rank and on the other hand, she was treated incompetent to hold property of her own. But at the same time, this right of inheritance was made subject to certain conditions such as chastity and absence of remarriage. After the Smiriti period, the right of succession was embodied in the commentaries.
While
the sages differed in the exact definition of the term ‘adya’ (the term
described in Mitakshara School of law as a women’s property), they were
unanimous in holding that gifts and ornaments received from the husband
constitute a woman’s stridhana.
The
position of women in Indian society had undergone many changes as a result of
social changes in the country. But in the middle age, the position of women
further worsened. In the middle age, the male began to dominate in martial
system, domestic affairs and also political and administrative fields. The
widow was compelled to depend upon any one of the male relatives because all
the property rights were transferred and enjoyed by male members only. If a
male died, his properties were distributed to his sons, grandsons and other
male relatives only. Unmarried daughters are to be supported by their brothers
and receive no share of the father’s estate. There were many changes with
respect to women and an important and favourable change took place with regard
to the position of Hindu women. Now they could be owners of a certain type of
property besides what was called ‘Stridhana’.
Attempts
to improve the position of women
The coming of Vasco Da Gama in 1498 A.D to the Indian shores brought about a lasting impact on the lives of Indian people. The British merchants entered India in 1600 A.D. and gradually occupied entire India. The advent of the British rule in India brought out new awakenings in the minds of Indian people. Not only the British, even the social reformers like Raja Rammohan Roy, EswarVidhyasagar and others started movements and fought for the welfare of women. They started to educate women and struggled to remove evil customs such as sati, ill-treatment of widows, the prohibition of widow remarriage, polygamy, dowry, child marriage, denial of property rights and education to women. The socio-religious reformers provided great scope for women to fight for their rights. Raja Rammohan Roy took up the problem of the right of inheritance for women. He said that all ancient lawgivers had awarded the mother an equal share with her son, in property left by a person. Raja Rammohan Roy realized that the economically helpless position of women, especially after her husband’s death, led them to the voluntary practice of sati, at least in some cases. For the first time, Raja Ram linked the practice of sati with the problem of property. He also for the first time stressed the need for making existing laws made know to the common people. As regards daughter’s right she is entitled to one-fourth the portion while a son has the right to inherit, but the modern lawgivers like those of the Dayabhaga School asserted that the daughter was entitled only to her marriage expenses. He suggested that the government should enact and enforce laws to remove these disabilities of women and put an end to such callous practice of society and bring economic freedom and education to them. But it did not basically change the structure of gender subordination; therefore, the status of women did not improve.
The coming of Vasco Da Gama in 1498 A.D to the Indian shores brought about a lasting impact on the lives of Indian people. The British merchants entered India in 1600 A.D. and gradually occupied entire India. The advent of the British rule in India brought out new awakenings in the minds of Indian people. Not only the British, even the social reformers like Raja Rammohan Roy, EswarVidhyasagar and others started movements and fought for the welfare of women. They started to educate women and struggled to remove evil customs such as sati, ill-treatment of widows, the prohibition of widow remarriage, polygamy, dowry, child marriage, denial of property rights and education to women. The socio-religious reformers provided great scope for women to fight for their rights. Raja Rammohan Roy took up the problem of the right of inheritance for women. He said that all ancient lawgivers had awarded the mother an equal share with her son, in property left by a person. Raja Rammohan Roy realized that the economically helpless position of women, especially after her husband’s death, led them to the voluntary practice of sati, at least in some cases. For the first time, Raja Ram linked the practice of sati with the problem of property. He also for the first time stressed the need for making existing laws made know to the common people. As regards daughter’s right she is entitled to one-fourth the portion while a son has the right to inherit, but the modern lawgivers like those of the Dayabhaga School asserted that the daughter was entitled only to her marriage expenses. He suggested that the government should enact and enforce laws to remove these disabilities of women and put an end to such callous practice of society and bring economic freedom and education to them. But it did not basically change the structure of gender subordination; therefore, the status of women did not improve.
The
colonial rulers did not interfere in the religious beliefs and traditions but
they interfered in the realm of family and social relationship they introduced
various types of laws in term of succession marriage sati etc, a movement to
strengthen the position of women in society began from the second half of the
nineteenth century. The earliest attempts may be traced back to 1865, with Act
X of that year as the first step towards confirming economic security upon
Indian women. The Indian Succession Act 1865 laid down that no person
shall by marriage, acquire any interest in the property of the person whom he
or she marries nor become incapable of doing any act in respect of his on her
own property which he or she could have done if not married to that person.
The Married Women’s Property Bill 1874 was a natural consequence of this
act. On 24th February 1874, the council of the Governor-General of India met at
Government House to consider the Bill. The bill was passed into Act III of
1874, which was the first law in modern times extending the scope of stridhan.
It declared that the wages and earning of any married woman, any property
acquired by her through the employment of her art and skill and all her savings
and investments shall be her separate property. This act, though a radical one,
did not create disturbance in Hindu society. Because, until 1923, the act
applied only to Indian Christian women, but married women belonging to Hindu,
Mohammedan, Sikh and Jain communities remained outside the purview of the act.
In 1923, the Married Women’s Property Act of 1874 was amended by Act
XIII of 1923 so as to bring Hindu women and others within its limits. The year
1923 was a very significant landmark for Hindu Women’s Independent Right to
Property was recognized for the first time, to a limited extent. No doubt,
section 4 of the Widow Remarriage Act 1856 entitled the childless widow to a
share of her husband’s property; this right was limited in its scope. So the
attempt made in 1923 may be regarded as the first move to ensure women’s
economic rights. The Married women’s Property Act of 1874 was further amended
in 1927 by Act No XVIII of that year. Apart from safeguarding the interests of
wives and husbands by the Act of 1923 and 1927, respectively, another act was
passed in 1929. It aimed at giving preference to some nearer degrees of female
heir over certain remoter degrees of male heirs. After the select committee
report, the bill again came up in the legislature Assembly on 27 March 1923.
Mukherjee suggested that before considering the report of the select committee,
the bill should be re-circulated so that more opinions could be voiced. But
Seshagiri argued that the principle of Hindu law on property was based on three
demands of bandhus-anabandhus (one’s own descendants), Pitribandhus (father’s
descendants) and matribandhus (mother’s descendants). Based on these
principles, the bill was passed but it was lost by a margin of eleven votes. On
19th July 1923, when the bill came before the council of states, it was
postponed. Thus Seshagiri’s bill on the Hindu Law of Inheritance remained
pending.
Hindu
Succession Act, 1956
The Hindu Succession Act enacted in 1956 was the first law to provide a comprehensive and uniform system of an inheritance among Hindus and to address gender inequalities in the area of inheritance – it was, therefore, a process of codification as well as a reform at the same time. Prior to this; the Hindu Women’s Rights to Property Act, 1937 was in operation and though this enactment was itself radical as it conferred rights of succession to the Hindu widow for the first time, it also gave rise to certain holes which were later filled by the Hindu Succession Act (HSA). HSA was the first post-independence enactment of property rights among Hindus – it applies to both the Mitakshara and the Dayabhaga system. The main scheme of the Act is:
The Hindu Succession Act enacted in 1956 was the first law to provide a comprehensive and uniform system of an inheritance among Hindus and to address gender inequalities in the area of inheritance – it was, therefore, a process of codification as well as a reform at the same time. Prior to this; the Hindu Women’s Rights to Property Act, 1937 was in operation and though this enactment was itself radical as it conferred rights of succession to the Hindu widow for the first time, it also gave rise to certain holes which were later filled by the Hindu Succession Act (HSA). HSA was the first post-independence enactment of property rights among Hindus – it applies to both the Mitakshara and the Dayabhaga system. The main scheme of the Act is:
1. The
hitherto limited estate given to women was converted to an absolute one.
2. Female
heirs other than the widow were recognized while the widow’s position now was
strengthened.
3. The
principle of simultaneous succession of heirs of a certain class was
introduced.
4. In
the case of the Mitakshara Coparcenaries, the principle of survivorship
continues to apply but if there is a female in the line, the principle of
testamentary succession is applied so as to not exclude her.
5. Remarriage,
conversion and unchastity are no longer held as grounds for disability to
inherit.
Even the unborn child, son or daughter, has a right if s/he was in the womb at the time of death of the intestate if born subsequently. Under the old Hindu Law, only the “stridhana” was the widow’s absolute property and she was entitled to the other inherited properties only as a life-estate with very limited powers of alienation. Even under the 1937 Act, the concept of “limited estate” continued. Section 14 of the Hindu Succession Act removed the disability of a female to acquire and hold property as an absolute owner, and converted the right of a woman in any estate already held by her on the date of the commencement of the Act as a limited owner, into an absolute owner. The provision is retrospective, it enlarged the limited estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force. The only exception, in the form of a proviso, is for the acquisitions under the terms of a gift, will or other instrument or a decree, or order or award which prescribe a restricted estate.
Even the unborn child, son or daughter, has a right if s/he was in the womb at the time of death of the intestate if born subsequently. Under the old Hindu Law, only the “stridhana” was the widow’s absolute property and she was entitled to the other inherited properties only as a life-estate with very limited powers of alienation. Even under the 1937 Act, the concept of “limited estate” continued. Section 14 of the Hindu Succession Act removed the disability of a female to acquire and hold property as an absolute owner, and converted the right of a woman in any estate already held by her on the date of the commencement of the Act as a limited owner, into an absolute owner. The provision is retrospective, it enlarged the limited estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force. The only exception, in the form of a proviso, is for the acquisitions under the terms of a gift, will or other instrument or a decree, or order or award which prescribe a restricted estate.
The
Present Position of Property Rights of Indian Women:
Hindu women’s property rights: The property rights of the Hindu women are highly fragmented on the basis of several factors apart from those like religion and the geographical region which have been already mentioned. Property rights of Hindu women also vary depending on the status of the woman in the family and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife or widow or mother. It also depends on the kind of property one is looking at: whether the property is hereditary/ ancestral or self-acquired, land or dwelling house or matrimonial property. Prior to the Hindu Succession Act, 1956 ‘Shastric’ (Hindu Canonical) and customary laws that varied from region to region governed the Hindus. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal in eastern India and the adjoining areas, and Mitakshara in other parts of India, with slight variations. Mitakashara school of Hindu law recognises a difference between ancestral property and self-acquired property. It also recognises an entity by the name of “coparcenary”. A coparcenary is a legal institution consisting of three generations of male heirs in the family. Every male member, on birth, within three generations, becomes a member of the coparcenary. Any coparcener has the right to demand partition of the joint family. Once a partition takes place, a new coparcenary would come into existence. For this reason, coparcenary rights do not exist in self-acquired property, which was not thrown into the common hotchpotch of the joint family.
Hindu women’s property rights: The property rights of the Hindu women are highly fragmented on the basis of several factors apart from those like religion and the geographical region which have been already mentioned. Property rights of Hindu women also vary depending on the status of the woman in the family and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife or widow or mother. It also depends on the kind of property one is looking at: whether the property is hereditary/ ancestral or self-acquired, land or dwelling house or matrimonial property. Prior to the Hindu Succession Act, 1956 ‘Shastric’ (Hindu Canonical) and customary laws that varied from region to region governed the Hindus. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal in eastern India and the adjoining areas, and Mitakshara in other parts of India, with slight variations. Mitakashara school of Hindu law recognises a difference between ancestral property and self-acquired property. It also recognises an entity by the name of “coparcenary”. A coparcenary is a legal institution consisting of three generations of male heirs in the family. Every male member, on birth, within three generations, becomes a member of the coparcenary. Any coparcener has the right to demand partition of the joint family. Once a partition takes place, a new coparcenary would come into existence. For this reason, coparcenary rights do not exist in self-acquired property, which was not thrown into the common hotchpotch of the joint family.
In the case of V. Tulasamma & Ors. versus V.
Sesha Reddi the Supreme Court of India clearly laid down the scope and the ambit of Sections 14(1) and (2) of the HSA, in which a fine distinction was
made by the court recognizing the woman’s right to property through her
pre-existing right to be maintained. The Court applied the exception only for
the cases where an instrument created an independent and new title in favour of
females for the first time. This case arose from the facts where under a
compromise in a suit for maintenance filed by the appellant Tulasamma, against
her deceased husband’s brother, who was in a state of joint-ness in the
ownership of properties with her husband at the time of husband’s death,
Tulasamma was allotted certain properties, but as per the written terms, she
was to enjoy only a limited interest in it with no power of alienation at all.
According to the terms of the compromise the properties were to revert to the
brother after the death of Tulasamma. Subsequently, Tulasamma continued to
remain in possession of the properties even after coming into force of the HSA
and after the HSA was enacted Tulasamma alienated her shares to someone else
.The alienation was challenged by the husband’s brother on the ground that she
had got a restricted estate only under the terms of the compromise and her
interest could not be enlarged into an absolute interest by the provisions of
the HSA in view of exception to Section 14 of the Act. In declining the
challenge by the brother, the Supreme Court upheld the absolute right of
Tulasamma. In fact the relevant observations in the judgment deserve to be
extracted in extenso: “The Hindu female's right to maintenance is not an empty
formality or an illusory claim being conceded as a matter of grace and
generosity, but is a tangible right against property which flows from the
spiritual relationship between the husband and the wife and is recognized and
enjoined by pure Shastric Hindu Law and has been strongly stressed even by the
earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not
be a right to property but it is a right against property and the husband has a
personal obligation to maintain his wife and if he or the family has property,
the female has the legal right to be maintained therefrom. If a charge is
created for the maintenance of a female. The said right becomes legally
enforceable. At any rate, even without a charge, the claim for maintenance is
doubtless a pre-existing right so that any transfer declaring or recognizing
such a right does not confer any new title but merely endorses or confirms the
pre-existing rights.” This principle has subsequently been repeated and expanded
in several later decisions.
The second important change has been brought about by Section 6 of the HSA by virtue of which on the death of a member of a coparcenary, the property devolves upon his mother, widow and daughter, along with his son, by testamentary or intestate succession, as the case may be, and not by survivorship. This rule confers on the women an equal right with the male member of the coparcenary. However, when the proviso to Section 6 applies, there is no disruption of joint family status – the proviso creates a fiction so that persons who are to inherit are identified. While the Hindu Succession Act may be said to have revolutionized the previously held concepts on rules of inheritance, it has its own flaws while dealing with property rights of women since it still does not give the right to the daughter of a coparcener in a Hindu joint family to be coparcener by birth in her own right in the same manner as the son or to have right of claim by birth. Also, there was a provision in Section 23 which states that “when the coparcenary property includes a dwelling house, the rights of a daughter to claim partition of the dwelling house shall not arise until the male coparceners choose to divide their respective shares and the daughter shall be entitled to a right of residence therein”. This fails to take into account the right to claim partition of dwelling houses is one of the basic incidents of ownership by women. Under this provision, a daughter has to wait till the male members seek a partition. An amendment was made to overcome these regulations, in five southern states of India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka. As per the law of four of these states, except Kerala, in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. Kerala, however, has gone one step further and has abolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on the mere fact that he or she was born in the family. The approach of the Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka state legislatures are different from that of Kerala and these states have not abolished the coparcenary and the right by birth, while broadly removing the gender discrimination inherent in Mitakshara coparcenary. The broad features of the legislations in the four states are more or less couched in the same language:
(a) The daughter of a coparcener in a Joint Hindu Family governed by Mitakshara law shall become a coparcener by birth in her own right in the same manner as the son is subject to similar rights in the coparcenary property and be subject to similar liabilities and disabilities;
(b) On the partition of a joint Hindu family of the coparcenary property, the daughter will have an equal share in the property as a son. The share of the predeceased son or a predeceased daughter on such partition would be allotted to the surviving children of such predeceased son or predeceased daughter, if alive at the time of the partition.
(c) This property shall be held by the woman with the incidents of coparcenary ownership and shall be regarded as property capable of being disposed of by her by will or other disposition. In Kerala Section 4 (i) of the Kerala Joint Family System (Abolition) Act, lays down that all the members of a Mitakshara Coparcenary will hold the property as tenants in common on the day the Act comes into force as if a partition had taken place and each holding his or her share separately. A lingering anomaly is that although the Hindu Succession testamentary Acts have conferred upon the daughter of a coparcener status but there is still a reluctance to making her a ‘Karta’ (manager of the joint family) because of the general male view that she is incapable of managing the properties or running the business. The government has amended the HSA as The Hindu Succession (Amendment) Act, 2005 which focuses on giving an independent right to the daughter like son, following the amendments done in the five southern states.
The second important change has been brought about by Section 6 of the HSA by virtue of which on the death of a member of a coparcenary, the property devolves upon his mother, widow and daughter, along with his son, by testamentary or intestate succession, as the case may be, and not by survivorship. This rule confers on the women an equal right with the male member of the coparcenary. However, when the proviso to Section 6 applies, there is no disruption of joint family status – the proviso creates a fiction so that persons who are to inherit are identified. While the Hindu Succession Act may be said to have revolutionized the previously held concepts on rules of inheritance, it has its own flaws while dealing with property rights of women since it still does not give the right to the daughter of a coparcener in a Hindu joint family to be coparcener by birth in her own right in the same manner as the son or to have right of claim by birth. Also, there was a provision in Section 23 which states that “when the coparcenary property includes a dwelling house, the rights of a daughter to claim partition of the dwelling house shall not arise until the male coparceners choose to divide their respective shares and the daughter shall be entitled to a right of residence therein”. This fails to take into account the right to claim partition of dwelling houses is one of the basic incidents of ownership by women. Under this provision, a daughter has to wait till the male members seek a partition. An amendment was made to overcome these regulations, in five southern states of India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka. As per the law of four of these states, except Kerala, in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. Kerala, however, has gone one step further and has abolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on the mere fact that he or she was born in the family. The approach of the Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka state legislatures are different from that of Kerala and these states have not abolished the coparcenary and the right by birth, while broadly removing the gender discrimination inherent in Mitakshara coparcenary. The broad features of the legislations in the four states are more or less couched in the same language:
(a) The daughter of a coparcener in a Joint Hindu Family governed by Mitakshara law shall become a coparcener by birth in her own right in the same manner as the son is subject to similar rights in the coparcenary property and be subject to similar liabilities and disabilities;
(b) On the partition of a joint Hindu family of the coparcenary property, the daughter will have an equal share in the property as a son. The share of the predeceased son or a predeceased daughter on such partition would be allotted to the surviving children of such predeceased son or predeceased daughter, if alive at the time of the partition.
(c) This property shall be held by the woman with the incidents of coparcenary ownership and shall be regarded as property capable of being disposed of by her by will or other disposition. In Kerala Section 4 (i) of the Kerala Joint Family System (Abolition) Act, lays down that all the members of a Mitakshara Coparcenary will hold the property as tenants in common on the day the Act comes into force as if a partition had taken place and each holding his or her share separately. A lingering anomaly is that although the Hindu Succession testamentary Acts have conferred upon the daughter of a coparcener status but there is still a reluctance to making her a ‘Karta’ (manager of the joint family) because of the general male view that she is incapable of managing the properties or running the business. The government has amended the HSA as The Hindu Succession (Amendment) Act, 2005 which focuses on giving an independent right to the daughter like son, following the amendments done in the five southern states.
LAND RIGHTS FOR WOMEN IN HINDU COMMUNITY
Until
the Hindu Succession Act, 1956, was amended in 2005, the property rights of
sons and daughters were different. While sons had complete right over their
father's property, daughters enjoyed this right only until they got married.
After marriage, the wife becomes the part of her husband’s property and was not
entitled to any right in father’s property.
Under Hindu law, a Hindu Undivided Family (HUF) is a group comprising more than one person, all lineal descendants of a common ancestor. A HUF can be formed by people of Hindu, Jain, Sikh or Buddhist faith.
Under Hindu law, a Hindu Undivided Family (HUF) is a group comprising more than one person, all lineal descendants of a common ancestor. A HUF can be formed by people of Hindu, Jain, Sikh or Buddhist faith.
HINDU SUCCESSION
(AMENDMENT) ACT, 2005
The Hindu Succession (Amendment) Act, 2005 brought a landmark change in the position of women in respect to the property rights in India and granted them independent rights by birth as given to males.
This Act amended Section 4 of The Hindu Succession Act, 1956 and omitted the sub-section (2).
The Section 3 of this act substituted a new section for Section 6 of the Hindu Succession Act, 1956. The substituted section is:-
The Hindu Succession (Amendment) Act, 2005 brought a landmark change in the position of women in respect to the property rights in India and granted them independent rights by birth as given to males.
This Act amended Section 4 of The Hindu Succession Act, 1956 and omitted the sub-section (2).
The Section 3 of this act substituted a new section for Section 6 of the Hindu Succession Act, 1956. The substituted section is:-
6. Devolution of interest in
coparcenary property.-
(1) On and from the commencement of the
Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by
the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener
in her own right in the same manner as the son;
(b) have the same rights in the
coparcenary property as she would have had if she had been a son;
(c) be subject to the same
liabilities 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 of a coparcener: Provided that nothing contained in
this subsection shall affect or invalidate any disposition or alienation
including any partition or testamentary disposition of property which had taken
place before the 20th day of December 2004.
(2) Any property to which a female
Hindu becomes entitled by virtue of subsection (1) shall be held by her with
the incidents of coparcenary ownership and shall be regarded, notwithstanding
anything contained in this Act, or any other law for the time being in force,
as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the
commencement of the Hindu Succession (Amendment) Act, 2005, his interest in
the property of a Joint Hindu family governed by the Mitakshara law, shall
devolve by testamentary or intestate succession, as the case may be, under this
Act and not by survivorship, and the coparcenary property shall be deemed to
have been divided as if a partition had taken place and,-
(a) the daughter is allotted the
same share as is allotted to a son;
(b) the share of the predeceased
son or a pre-deceased daughter, as they would have got had they been alive at
the time of partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the predeceased
child of a pre-deceased son or of a pre-deceased daughter, as such child
would have got had he or she been alive at the time of the partition, shall be
allotted to the child of such predeceased child of the predeceased son or a
predeceased daughter, as the case, maybe. Explanation.- For the purposes of
this subsection, the interest of a Hindu Mitakshara coparcener shall be
deemed to be the share in the property that would have been allotted to him if
a partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the
Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to
proceed against a son, grandson or great-grandson for the recovery of any debt
due from his father, grandfather or great- grandfather solely on the ground of
the pious obligation under the Hindu law, of such son, grandson or great-
grandson to discharge any such debt: Provided that in the case of any debt
contracted before the commencement of the Hindu Succession (Amendment) Act,
2005, nothing contained in this subsection shall affect-
(a) the right of any creditor to
proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect
of or in satisfaction of, any such debt and any such right or alienation shall
be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession
(Amendment) Act, 2005 had not been enacted. Explanation.- For the purposes of
clause (a), the expression" son"," grandson" or" great-
grandson" shall be deemed to refer to the son, grandson or great-
grandson, as the case may be, who was born or adopted prior to the commencement
of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this
section shall apply to a partition, which has been effected before the 20th day
of December 2004. Explanation.- For the purposes of this section"
partition" means any partition made by execution of a deed of partition
duly registered under the Registration Act, 1908 (16 of 1908 ) or partition
effected by a decree of a court.
Section
4 omitted Section 23 of the Hindu Succession Act, 1956(HSA) and Section 5
omitted Section 24 of HAS. Section 30 of HSA was amended under Section 6
and substituted the words “ disposed of by him or by her” in place of the words
“ disposed of by him”. The rights of women hiked up with the Hindu Succession (Amendments) Act, 2005
Shalu Nigam a legal expert with the Centre for Women and Development Studies (CWDS) said that “This is landmark legislation as it allows women access to her and her family's livelihood through ownership over agricultural land". In the Hindu Succession Act, 1956, women cannot claim rights over agricultural land through succession because it leads to fragmentation of land and creates complications in fixing ceilings and devolution of tenancy rights. Based on the medieval Hindu 'Mitakshara' system, it gave primacy to male lineal descendants in the male line of descent.
Agricultural the land was always marked as a male privilege as it is regarded as profitable property in rural areas. Even when communist West Bengal tried land reforms in 1977 by distributing land to the landless, it did not consider women. "This was because...women were not considered land-tillers. Thus, although they did most agricultural work, they had little right over agricultural property," explains Indu Agnihotri, senior fellow, CWDS. The situation was worse in states like Haryana, Punjab, Himachal Pradesh, Delhi, Uttar Pradesh and Jammu Kashmir, where tenurial laws were completely against women. But the new law will override all discriminatory state laws. In southern states, the laws favoured women slightly; Kerala had abolished the HUF property system.
Bina Agarwal of New Delhi-based Institute of Economic Growth, who has battled for the amendment, believes it will bring gender justice and improve women's socio-economic status. Earlier studies have shown that gender inequality in agricultural land is a precursor to poverty in rural areas. "As women had no rights over farmlands, they had little said in mortgaging and its other uses by the male," points out Agnihotri. This endangered their livelihood increased domestic violence and compromised care for their children.
Continued in Part II...
Shalu Nigam a legal expert with the Centre for Women and Development Studies (CWDS) said that “This is landmark legislation as it allows women access to her and her family's livelihood through ownership over agricultural land". In the Hindu Succession Act, 1956, women cannot claim rights over agricultural land through succession because it leads to fragmentation of land and creates complications in fixing ceilings and devolution of tenancy rights. Based on the medieval Hindu 'Mitakshara' system, it gave primacy to male lineal descendants in the male line of descent.
Agricultural the land was always marked as a male privilege as it is regarded as profitable property in rural areas. Even when communist West Bengal tried land reforms in 1977 by distributing land to the landless, it did not consider women. "This was because...women were not considered land-tillers. Thus, although they did most agricultural work, they had little right over agricultural property," explains Indu Agnihotri, senior fellow, CWDS. The situation was worse in states like Haryana, Punjab, Himachal Pradesh, Delhi, Uttar Pradesh and Jammu Kashmir, where tenurial laws were completely against women. But the new law will override all discriminatory state laws. In southern states, the laws favoured women slightly; Kerala had abolished the HUF property system.
Bina Agarwal of New Delhi-based Institute of Economic Growth, who has battled for the amendment, believes it will bring gender justice and improve women's socio-economic status. Earlier studies have shown that gender inequality in agricultural land is a precursor to poverty in rural areas. "As women had no rights over farmlands, they had little said in mortgaging and its other uses by the male," points out Agnihotri. This endangered their livelihood increased domestic violence and compromised care for their children.
Continued in Part II...
Read Women’s Land Ownership Right and Socio-economic Empowerment in India-II by Shruti Chauhan here, the author analyses the Rights as given through amendment with a sharp trend of response from the judiciary through decided case laws.
About the Author: Ms. Shruti Chauhan is Law Student at PSIT, Kanpur. She can be reached at shruti2527schauhan@gmail.com. alert-info
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