Women Property Rights Under Hindu Law

WOMEN PROPERTY RIGHTS UNDER HINDU LAW Since time immemorial the framing of all laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support. The Hindu Succession Act 1956 is one of the living examples of the fact that laws are Patriarchal in nature. In this paper I am exploring the property and inheritance rights of women as they were granted after independence and what is the status of women under the aforementioned act after amendment in 2005.Further how the courts have contributed in the growth of law in favour of women. The Hindu Succession Act, 1956, is basically based on Mitakshara law, under which coparcenary rights are in favour of male child by birth. The Act explicitly approved the continued application of the traditional concept of the joint family and the preferential rights of the male heir. Before we move forward lets see what the provision under 1956 act states: “When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not inaccordance with this Act: Provided that, if the deceased had left him 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, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary and intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1- For the purposes of this Section, 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. Explanation 2- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. ” This provision was discriminatory towards women and was acknowledged by the Law Commission and while presenting its 174th Report , it suggested the changes to provide women equal property rights. The report mentions that: “The Law Commission is concerned with the 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 HSA 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 HSA. The property of a male Hindu dying intestate devolves according to section 8 of the HSA, 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 propositus. 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 gets 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.” Keeping this background in mind report by the team from Lawyers Collective Women’s Rights Initiative, the Hindu Succession Amendment Act, 2005 (the“amendment Act”) was enacted to enlarge the rights of a daughter, married and unmarried both and to bring her at par with a son or any male member of a joint Hindu family governed by the Mitakshara law. It also sought to bring the female line of descent at an equal level with the male line of descent, including children of pre-deceased daughter of pre-deceased daughter. By the way of the amendment Act, the daughter of a coparcener has been admitted in coparcenary and after the commencement of the Amendment Act the daughter is a coparcener in her own right. The daughter now has the same rights and liabilities in the coparcenary property as the son. This means that a daughter along with a son is liable for debts of joint family. The daughter is also entitled to dispose of her share of the coparcenery property or her interest thereof by way of a will. The Hindu Succession (Amendment) Act, 2005 (39 of 2005) came into force from 9th September, 2005. The Government of India has issued notification to this effect. The Section 6 of the Hindu Succession Act as it stands after the Amendment in 2005 is extracted hereunder for better appreciation:- Section- 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 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 Sub-Section shall affect or invalidated any disposition or alienation including any partition or testamentary disposition of property which had been taken place before the 20th day of December, 2004. (2) to (4) xxx xxx xxx (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) of partition effected by a decree of a Court. The basic concept of coparcenary is that only male members of a joint Hindu family can constitute a coparcenary completely excluding the female members of the family, This concept has not been substantially modified with the amendment of Section 6 of the HSA However, although the daughter has been included as a coparcener by way of this amendment the wife, mother and widow are still standing in queue for their admission in the coparcenary. The courts have played a vital role in making this amendment effective by interpretating it liberally and bringing in the concept of notional partition , without it being expressly mentioned in the amended section. In Gurupad Vs. Hirbai AIR 1978 SC 1239 Supreme Court observed that ignoring a woman’s right to get a share at the time of notional partition essentially means that: “One unwittingly permits one’s imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff’s husband and his sons. The fiction created by Explanation I has to be given its full and due effect.” In M. Yogendra and Ors. Vs. Leelamma N. and Ors. 2010(1)ALLMR(SC)490, the Supreme Court held that “The Act indisputably would prevail over the Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Further in G. Sekar Vs. Geetha and Ors AIR2009SC2649., the Supreme Court held that: “It is, therefore, evident that the Parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act but also conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act. “ Till now we have seen what the status of women regarding Ancestral property is. Now we move forward to next dimension of women property rights i.e. as an absolute owner of her own property. This finds specific mention under section 14 of the Hindu Succession Act 1956. To discuss it in detail we must understand the section first, which states as under: Section 14 : the property of a female Hindu is to be her absolute property: (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation:- In this sub-section "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhan immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. Plain reading of the section 14 reveals that female Hindu is conferred the absolute right to her property. In Komalam Amma vs.Kumara Pillai Raghavan Pillai and Ors. MANU/SC/8262/2008 Supreme Court has laid down “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). In another decision of Tulasamma vs. V Sesha Reddy (1977) 3 SCC 99 Apex Court held that: “Besides possessing an existing right of maintenance,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 W 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.” We move on to see what is given in Section 15 of the Hindu Succession Act which specifies how the property of a female Hindu will devolve and it is discriminatory on face of it. It states that in the absence of class I heirs( son, daughters & husband)e property of a female Hindu will go to her husband's heirs and only if these heirs are not then will the property devolve upon her mother and father. However, in the absence of the mother and father, the property will again devolve upon the heirs of the father and only if there are no heirs of father will the property devolve upon the heirs of the mother. Here it is apt to discuss G. Sekar Vs. Geetha and Ors. Civil appeal no 2535 of 2009 Where Apex Court Laid Down : “13. The Act brought about revolutionary changes in the old Hindu Law. It was enacted to amend and codify the law relating to intestate succession amongst Hindus. By reason of the Act, all female heirs were conferred equal right in the matter of succession and inheritance with that of the male heirs……… 14. By reason of Section 14 of the Act, a woman who had limited interest in the property but was possessed of the same was to become absolute owner. Section 6 of the Act, however, makes an exception to the a aforementioned rule by providing the manner in which the interest in the coparcenary property shall devolve upon the heirs stating that the rule of survivorship would operate in respect thereof. The right, title and interest of an heir, whether male or female, thus, are governed by the provisions of the Act. 22.Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparcenary property is concerned has been sought to be removed,………” Now we move on to sections 23 and 24 of the Act. The Act deletes Section 23 of the 1956 HSA, thereby giving all daughters (married or not) the same rights as sons to reside in or seek partition of the family dwelling house. Section 23 did not allow married daughters (unless separated, deserted or widowed) even residence rights in the parental home. Unmarried daughters had residence rights but could not demand partition. Under the 2005 Act, married daughters will also benefit by the deletion of Section 23, since now they will have residence and partition rights in the parental dwelling house. In particular, women facing spousal violence will have somewhere to go. The only negative aspect is that allowing partition could increase the vulnerability of elderly parents. A preferred alternative would have been to bar both sons and daughters from seeking partition during their parents' lifetimes, if the family had only one dwelling. The Act also deletes Section 24 of the 1956 HSA, which barred certain widows, such as those of predeceased sons, from inheriting the deceased's property if they had remarried. Now they can so inherit. The significant change — making all daughters (including married ones) coparceners in joint family property — is also of great importance for women, both economically and symbolically. Economically, it can enhance women's security, by giving them birthrights in property that cannot be willed away by men. In a male-biased society where wills often disinherit women, this is a substantial gain. Also, as noted, women can become kartasof the property. Symbolically, all this signals that daughters and sons are equally important members of the parental family. It undermines the notion that after marriage the daughter belongs only to her husband's family. If her marriage breaks down, she can now return to her birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families. Female heirs are often deprived of their legitimate share in the property, says Flavia Agnes. The institution of property and women's access to it has been a complex and contentious one within our legal system. In order to understand its complexity, we need to understand the institution of property and its changing character. We also need to contextualize women's access to property within the prevailing ethos and women's status in each era. Broadly speaking, women's right to property is governed by the personal law regime. Concluding Remarks: These amendments can empower women both economically and socially. and have far-reaching benefits for the family and society. Independent access to agricultural land can reduce a woman and her family's risk of poverty, improve her livelihood options, and enhance prospects of child survival, education and health. Women owning land or a house also face less risk of spousal violence. And land in women's names can increase productivity by improving credit and input access for numerous de facto female household heads. Making all daughters coparceners like wise has far-reaching implications. It gives women birthrights in joint family property that cannot be willed away. Rights in coparcenary property and the dwelling house will also provide social protection to women facing spousal violence or marital breakdown, by giving them a potential shelter. Millions of women - as widows and daughters - and their families thus stand to gain by these amendments. It is clear that a amendment to the Hindu Succession Act has made the daughter a member of the coparcenary. It also gives daughters an equal share in agricultural property. These are significant advancements towards gender equality. Empowerment of women, leading to an equal social status in society hinges, among other things, on their right to hold and inherit property. 14