Introduction
In India, the social stature of women was once kept in really high regards but with the advent of time, there could be seen a change in attitude towards women. It was widely believed that women, as compared to men belonged to the weaker sex and were physically as well as mentally, less strong than men in all aspects of life. This status of women is often attributed to the fact that women were the counter part in a society which was dominated by men. Over time, there has been a lot of change in what women are perceived as today and what their status is as compared to the earlier times. Today, due to the law which calls for equality against women, they have started enjoying the equality with men.[1]
The years, 1956 and 2005 are dates of legal importance when the law of Patriarchy was re-written in terms of property rights for Hindu women in general and daughters in particular respectively. By virtue of the former legislative initiative, daughters, mothers and the widows are given share in the separate property of male Hindu equal to that of a son and more categories of women are placed in the succession system. Through the latter initiative, the daughter has equal rights as the son in the ancestral property and, is legally acknowledged as a coparcener which has changed the definition of coparcenary drastically.[2]
The Hindu Succession Act is the result of a composition between different legal traditions, such as various Hindu schools, British common law and the Western philosophy underlying the concept of equality. However, the perceptions and the mindset of the society remains discriminatorily the same and has not been capable of reforming through laws. Viewed from a sociological aspect, it is a situation where the actual behaviour of the society differs from the legally desired behaviour, which results in socio-legal tension due to the significant gap between the law and the social mindset.
The Pre-existing socio-legal status
In the Vedic period, the status of women was better than in the subsequent period. All things apart, the only factor of disability suffered by women during that period was of the right to inheritance.
According to the Vedic literature, it acknowledged the right of inheritance only to the unmarried daughter and to a brotherless married daughter. The general norm in the Hindu society during those times was that, in case women had brothers, then she did not have a say on the share in the father’s legacy/heritage. The husband and wife in the Vedic age were considered as joint home makers and thus were considered to have joint ownership in property. During the Vedic period, widows were not given the right to inherit the property of their deceased husband.
With the evolution of the concept of private property, women gradually lost her status. Baudhaya, who was one of the founders of Yajurveda, excluded a Hindu woman from the right to inheritance as per his ideologies. His theory of exclusion of women from succession was substantiated by placing reliance on the Sruti text, “women are considered to be destitute of strength and portion”.
During the Smriti period, considerable progress with regards to the women’s right to succession and inheritance was reflected. Smritian scholars such as Manu, Yajnavalkya, Narada and other Smriti writers altered and added certain female heirs in the order of succession. Brihaspati emphasized a wife’s and daughter’s right to succession. Narada did not recognize a widow’s claim but accepted the right of the daughter. However, her right to inheritance was restricted due to the subjection to certain conditions. A widow was supposed to embrace celibacy and lead a life of chastity under the guidance and control of her deceased husband’s male relatives.
After the Smriti period, the law of female succession was embodied in the commentaries. Both the Mitakshara and Dayabhaga have acknowledged the right of inheritance to five females, namely, the widow, daughter, mother, paternal grandmother and paternal great grandmother. In addition to the expressly recognized female heirs, certain other categories of females were also admitted to heritable capacity only as bandhus of the deceased. The early commentaries refused to concede females as heirs in the process of transferring property until and unless there are special texts of Sastras which are in favour of the same.
The Hindu Law of Inheritance Act 1929 added certain females as heirs for the first time in all the Mitakshara sub-schools and also assigned them fixed rank in the sapinda class. The Act only included son’s daughter’s daughter and sister as heirs. The Act was applicable to Mitakshara but not extended to the Dayabhaga.
Later, The Hindu Women’s Rights to Property Act was implemented in 1937. It conferred heritable capacity to the widow, the predeceased son’s widow and the widow of the predeceased son’s deceased. However, the Act did not modify or amend the whole area of Hindu law of inheritance in general. [3]
The Hindu Succession Act 1956 conferred the right to succession on many more females and thus scraped off the old belief of general exclusion of women from inheritance. [4]
Salient features of the Hindu Succession Act 1956
The Hindu Succession Act, 1956 came to existence on 17th June 1956 and brought some extreme changes in the rules previously followed for intestate succession by Hindus. There was a need to improvise on the position of Hindu women in the society and therefore an effective law was required to be brought into action.
- The Act provides for a uniform heritage therein for to persons in the Mitakshara and Dayabhaga schools as well as to persons of Southern India who are governed by Hindu law systems Marumakkattayam, Aliyasanthana and Nambudri.[5]
- The Act affected extensively the entire notion of coparcenary Mitakshara, which was subject to the rule of survival. Under this arrangement the husbands had no position and the land was only passed to the husband’s descendants upon the demise of a husband in the Act.
- The Act abolished Hindu women’s restricted property and managed to make the property their absolute proprietor regardless of their source of purchase. [6]
- The Act further provided for a consistent succession order in the field of women’s Hindu lands.
- The Act establishes general rules of succession, amongst other things that heirs of a male or a female executor are preferable to half-blood-related ones if the nature of the relationship is the same in all other respects.[7]
- The rights of the child in womb on death of the inheritance and then born alive refer back to the date of death of the intestate.[8]
Women’s Rights in the separate properties of a Male and Female Hindu
- The Hindu Succession Act, 1956 lays down rules of succession of property differently for a Male and Female. The Act also addresses a situation where a male Hindu dies leaving behind his undivided interest in the joint family which has not been claimed by him by way of partition during his life time. [9]
- The Act mentions many female relatives of the male propositus and places them in the scheme of succession in hierarchy according to nearness of blood relationship.
- Marital status of the woman is irrelevant in the exercise of succession of property.
- If a widow has already remarried as on the day of the death of the male Hindu, then such a woman will not be entitled to any share in the property.[10]
- The wife in a bigamous marriage is not entitled to any share in the husband’s property.
- Daughter out of an illegitimate relation is an illegitimate child, and therefore she will not be entitled to the property of her biological father.
The 2005 Hindu Succession Amendment Act
In earlier times, after the girl got married, she was not a part of her father’s Hindu Undivided Family anymore. Now, because of the Amendment Act, women have the equal right in the property of their fathers as men. The daughters, irrespective of their marital status are considered a part of their father’s Hindu Undivided Family and can also become the Karta of the family.
Some features of the Hindu Succession Amendment Act, 2005 are:
- These provisions of law are attracted only in lineal father-son coparcenary.[11]
- Just as the birth right of a son, a daughter of a coparcener also becomes a coparcener by right of her birth .[12]
- Daughters have equal rights as the son in the property of their father. [13]
- Just as he sons, daughters are equally liable for joint family debts.
- Daughters can also demand for her share of property just as the sons, and can demand for partition.
- If, on the date of death of father, the daughter is predeceased leaving behind her children, they shall be allotted her share.[14]
- Daughter’s children are entitled to the benefits of their mother’s coparcener status only and cannot have independent claim in their maternal grandfather’s coparcenery property during his life time.
The Hindu Succession Amendment Act, 2005 led to the deletion of Section 4(2) of the Act of 1956 which was a highly discriminatory provision. The 2005 Amendment led to the bringing of all agricultural land at par with the other inheritable property and gives women the right to inherit agricultural land as well.
The Act also led to the deletion of Section 23 of the previous act which prohibited the daughters from seeking partition in the family dwelling house. Section 23 did not allow the married daughters to even seek residence in the father’s dwelling property once she was married off. Now the daughters, even after getting married, can seek residence in her father’s property.
Legal hurdles
Access to legal justice is quite difficult despite the development of conferring inheritance and succession rights to women. Women find it difficult to approach the Court and fight for their share. They find it difficult to do so because, in the exercise of claiming for succession rights, women are seen as undertaking a step which is divergent from the established norms defining womanhood. Once men and women are in the realm of the state legal system, they have to modify the way they present and interpret their life experiences to ‘fit’ within the boundaries of the legal culture of a particular court.[15]
Lack of transparency in advocate-client dealing leads to trust deficiency in lawyer’s commitment to the case, which is another hurdle in continuing the case. The impediments of governmental administration can transform the process of finding a straightjacket solution into a real challenge which can thus prove to be discouraging for someone who is unfamiliar with such procedures. Widows often raise concern and despair regarding administrative procedures. The numerous layers of a litigation procedure forces her to withdraw in the middle. The frustration of accessing justice is such that widows tend to give up pursuing access to their husband’s pension, widow’s pension, or other types of property to which they have a right.[16]
Conclusion
Co-existence and synchronisation of legal objectives with social perceptions is the need of the hour. Adjusting laws to needs of the society is comparatively easier than adjusting societal needs and behaviour to legal needs. Solutions for various property disputes are derived through various ideologies related to women’s rights, along with ideals of gender relationships.
There is a great need of women to be financially independent in order for them to be able to rise above the barriers that are put in front of them by the society. The Act of 1956 hampered this and disabled women from being financially independent. The amendment act has come out to be very helpful to the women seeking financial independence as they no longer have to bear the torments of their in laws because of the financial helplessness
If the Indian government wishes to effectively implement the Hindu Succession Act, legal literacy programs are necessary to educate the population on the benefits of women’s access to property rights for the whole society. Since local communities face great societal transformations with the reallocation of land and property, the State must aim to encourage local initiatives that step forward to support such communities.
References
- Hindu Succession Act 1956
- Hindu Succession (Amendment) Act 2005
- Pradeep Kulshrestha, The Hindu Succession Act, 1956 and the Amendment Act of 2005, 7 Issue 10 Journal of Critical Reviews, 1137-1340 (2010)
- B.Pankaja, WOMAN’S RIGHT TO INHERIT UNDER HINDU SUCCESSION ACT 1956 AS AMENDED IN 2005 – LEGAL ENTITLEMENTS AND SOCIAL BARRIERS, 4 Impact Journals, 225-232 (2016)
- Prakash Chand Jain, WOMEN’S PROPERTY RIGHTS UNDER TRADITIONAL HINDU LAW AND THE HINDU SUCCESSION ACT: SOME OBSERVATIONS, 45, No. ¾ Journal of the Indian Law Institute, 509-536 (2003)
- Paras Diwan, Ancestral Property After Hindu Succession Act 1956—Joint Family Property Or Separate Property? A Muddle Under Tax Cases, 25 Journal of the Indian Law Institute (1983)
[1] Pradeep Kulshrestha, The Hindu Succession Act, 1956 and the Amendment Act of 2005, 7 Issue 10 Journal of Critical Reviews, 1137-1340 (2010)
[2] P.B.Pankaja, WOMAN’S RIGHT TO INHERIT UNDER HINDU SUCCESSION ACT 1956 AS AMENDED IN 2005 – LEGAL ENTITLEMENTS AND SOCIAL BARRIERS, 4 Impact Journals, 225-232 (2016)
[3] The Hindu Women’s Rights to Property Act, 1937
[4] Prakash Chand Jain, WOMEN’S PROPERTY RIGHTS UNDER TRADITIONAL HINDU LAW AND THE HINDU SUCCESSION ACT: SOME OBSERVATIONS, 45, No. ¾ Journal of the Indian Law Institute, 509-536 (2003)
[5] Paras Diwan, Ancestral Property After Hindu Succession Act 1956—Joint Family Property Or Separate Property? A Muddle Under Tax Cases, 25 Journal of the Indian Law Institute (1983)
[6] Hindu Succession Act, 1956, s.8
[7] Hindu Succession Act, 1956, s.28
[8] Hindu Succession Act, 1956, s.14
[9] Hindu Succession Act, 1956, s.6
[10] Hindu Succession Act, 1956, s.24
[11] Hindu Succession (Amendment) Act, 2005, s.6(1)
[12] Hindu Succession (Amendment) Act, 2005, s.6(1)(a)
[13] Hindu Succession (Amendment) Act, 2005, s.6(1)(b)
[14] Hindu Succession (Amendment) Act, 2005, s.6(3)(b)
[15] Supra note 2
[16] Supra note 1
This article has been written by Nijin Raj K Jose, 2nd year BBA LLB student at Christ (Deemed to be a University), Bangalore.
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