Introduction
Indian society is typically patriarchal and misogynistic when it comes to the ‘women’s right to property’. Women are denied their share in ancestral and marital property and kept in the dark from finance-related issues. It is parochially avowed that entrusting property rights with females would make them independent, independence is viewed as a ‘threat’ to the slavish norms that women are typically accustomed to. What is more to this discrimination is that they are wedded off lavishly, with hefty amounts. This is one tactic that silences them from asserting their right to property. Moreover, their stridhan or dowry is also forcefully usurped or confiscated by their in-laws against their wishes.
Many women belonging to the lower strata of society did not have access to justice and were ignorant about their rights. Whenever they stood up, they were crushed by the provisions of ancient customary laws and religious texts which acted to their prejudice. For instance, according to Manu, “three persons, a wife, a son, and a slave are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong.” This submits that Women, who was equated with slaves, had no say in matters or possession of wealth. In some societies, women were themselves proclaimed as “a man’s property”.
Another line from the Manusmriti reads, “A woman is protected by her father in childhood, by husband in youth and by son in old age; she is not fit for independence”. This conveys a serious misconception that women are vulnerable and incapable of holding property and assets and are to be managed by the males of the household.
In contrast, Muslim women since the archaic ages have enjoyed the right to inheritance of property expressed unequivocally in the Quran. They also had the right to bequeath and make wills, be witnesses to documents and had the right to initiate court action. Moreover, Islam provided for a simple nikah ceremony and dower or mahr (meaning “bride price”) flowed from the bridegroom’s family. The proportion of inheritance of a Muslim woman, i.e., half of that of a man (e.g.- Her brother) is justified on these grounds, as she typically receives dower and a share in her husband’s property, apart from having the autonomy to run businesses and own land on her own accord. Ironically, in the present times, the filth of patriarchy stands as a tall barrier to the rightful Islamic rights of Muslim women.
Allah says in the Holy Quran:
There is a (definite) share for men in what is left by their parents and close relatives, and there is a (definite) share for women in what is left by their parents and close relatives; whether small or big, this share is mandatory. (4: 7)
But if at the time of the division, other relatives, orphans or poor are present, give them something out of the (assets), and speak to them in words of kindness. (4:8)
These are God’s directions regarding your children: to the males a share equal to that of two females: if (one has) only daughters, two or more, their share is two-thirds of the total inheritance; if only one, her share is half; for parents, in case the deceased has left children, each one gets one-sixth share; if there are no children left, and the parents are the only heirs, the mother has one third; if the deceased left brothers (or sisters), the mother has one-sixth. (The distribution is to be made) after the payment of all dues and debts. (4: 11)
However, according to the Quran, a Muslim man is the one who has to maintain his children and wife and take care of his parents. It must be noted that a man’s money does not solely belong to him whereas a woman’s property exclusively belongs to her.
Contemporarily, the laws on the property have evolved through significant amendments, empowering women to recognize and exercise their rights. Securing rights for women would:
1. Strengthen their status within their families and community,
2. Help in achieving gender equality,
3. Increase their decision-making power,
4. Ensure social protection, autonomy and economic independence, and
5. Boost their participation in public affairs.
Historical Background of Property Rights for Women
In the Vedic Period, female Goddesses and idols were worshipped, but women were not entrusted with the rights of inheritance. Vedic Literature emphasizes inheritance and succession only to the unmarried daughter and brother-less married daughter over father’s estate and to childless widow over husband’s estate.
Evil practices such as child marriage, sati and ban on widow remarriage in the Medieval period further sank women’s position in society.
In the Smriti period, women’s right to property depended on two schools of Law, namely Mitakshara and Dayabhaga Law (followed in Eastern India). The former allowed son(s), grandson(s) and great-grandson(s) to inherit property equally as coparceners (a person who has the right to inherit ancestral property by birth) while the latter allowed daughters and sons to equally inherit the intestate property after the father’s death. Other schools of law were-Mayukha (followed in Western India) and Marumakkattayam or Nambudri (these were matriarchal in nature and were followed in South India).
It was after 1937 that laws on the property were enacted to secure women of their share in financial assets, including movable and immovable property. However, despite such enactments, many ambiguities and inequalities in these laws and their enforcement loom large.
Important Legislations & Amendments
The women’s right to property in India are differently defined for a daughter, a mother, a married woman, an unmarried woman and a widow, governed by the respective personal laws of their religion and at times, even region and a community’s customs. These rights hinge on the type of property, i.e., hereditary, self-acquired, dwelling house or matrimonial property.
Further, a woman’s right to succession under different laws also depends on whether the will is registered, i.e., testamentary, or the owner dies intestate. For example, if a father lawfully bequeaths the whole of his property to his son through a will and excludes his daughter, that is final.
Additionally, as per 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 versions of property laws within each personal law.
To be precise,
1. Hindus, Sikhs, Jains and Buddhists are governed by codified law, namely, the Hindu Succession Act, 1956, which pertains to intestate cases.
2. The Indian Succession Act, 1925 deals with the transfer of property by testamentary succession and applies to Hindus, Sikhs, Jains, Buddhists, Christians, Parsis and Jews.
3. Neither the Shia nor the Sunni sect of Muslims has yet codified their property rights. Muslims continue to be governed by the Muslim Personal Law (Shariat) Application Act 1937.
4. Christians from Goa are governed by the Portuguese’s civil code; Cochin and Travancore by Christian Succession Act 1921 and Travancore Christian Act 1916; those in Punjab, Haryana and Himachal Pradesh by Customary laws, and the rest by the Indian Succession Act, 1925.
5. Tribal Women continue to be guided by the norms and customs of their tribes.
In 1937, the British Colonialists promulgated the Hindu Women’s Right to Property Act to permit Hindu widows to inherit the intestate property of their husbands. However, it was quiet on certain issues, such as the rights of widows when the husband had disposed of his property by a registered will, stake of women in agricultural land and the overall right of inheritance of other women. It was met with criticisms and viewed with discontent by advocates of women’s empowerment.
After independence, in 1956, the Hindu Succession Act was formulated as the first codified and comprehensive law on property. It conferred coparcenary rights upon three generations of male lineal descendants of a common ancestor. It also introduced the doctrine of survivorship, according to which the coparcenary property would increase with death, and decrease with a birth. This act did not apply in cases of testamentary succession.
Subsequently, a long discourse in the public domain and pressure from the Law Commission led to an amendment in Section 6 of the Act. It, thus, came to be known as the Hindu Succession (Amendment) Act, 2005 and provided that a daughter (married or unmarried) could be an equal coparcener by birth in the same measure and manner as a son. As such, women could claim an absolute and equal share in movable and immovable property as men. This amendment upheld Article 14 or the fundamental right to equality guaranteed by the constitution of India. Through this act, women were entitled to “absolute estate”, and not “limited estate”. With this, the survivorship rule also became ineffective.
Landmark Judicial Articulations
The Apex Court has come up with progressive and commendable verdicts related to women’s right to property. Some landmark judgments are discussed as under:
In Vineeta Sharma vs Rakesh Sharma[1], the court clarified that a daughter has equal rights to her paternal property, irrespective of her marital status. It reiterated that a daughter shall have the same rights as well as liabilities as a son.
In S. R. Batra vs. Tarun Batra[2], the court stated that a wife can only claim the right of residence in a ‘shared household’ (under the Protection of Women from Domestic Violence Act, 2005) against the husband and not against the father-in-law.
Recently, this judgment was overruled in Satish Chander Ahuja v. Sneha Ahuja[3]. It was held that a wife is entitled to a right of residence in the property belonging to relatives of the Husband as well.
In Prakash & Ors. v. Phulavati & Ors.[4], the court held that the Hindu Succession (Amendment) Act would only be effective if the daughter and the father were alive on the date of formulation of the amendment.
This was overruled in the Danamma v. Amar[5], wherein, it was decided that the daughter would have an equal coparcenary right over her father’s property in a Hindu Undivided Family (HUF), even if the father had expired before the enforcement of the amendment (9th September 2005). The rationale was that the daughter’s right accrues from her birth.
Hindu Women’s Right to Property
For a Daughter
1. She gets an equal share, the same as a son in her father’s and mother’s property.
2. Even after getting married, she holds her right upon the property earned by her or gifted or willed to her and can dispose of her property as per her wish.
For a Mother – She is entitled to be maintained by her children if they’re not dependants.
For a Married Woman
1. She holds absolute ownership over her own assets.
2. She is entitled to be maintained by her husband or his family (in the case of a Joint family).
3. Upon divorce, she is entitled to get a lump sum amount (alimony) or monthly allowance.
For a Widow – She is entitled to the same proportion of share as her son or daughter in her deceased husband’s property.
Muslim Women’s Right to Property
According to MR Shamshad, a Supreme Court lawyer, “The Islamic concept’s landmark is that when the most parts of the world treated woman herself as belonging to the man, Islam gave two independent rights to the woman—the right to have the marriage legally dissolved by Mubarak, talaq, khula, and right to inherit property.”
The laws on inheritance for Muslim women are guided by:
1. The Quran and the Sunna
2. Ijma or the consensus of the learned men, and
3. Qiyas or deductive reasoning drawn from the Quran and Hadith on what is just.
Since the majority of the Muslims in India are Sunni, they are guided by Hanafi Law, which is one out of the 4 dominant schools of thought. Shias follow Ithna Ahsari Law of Intestate Succession.
Points to be noted:
1. When no will has been made, the Shariat Law applies; When a will has been registered by the deceased, the Indian Succession Act applies (in West Bengal, Mumbai and Madras jurisdiction).
2. Property can only be inherited after the death of the property holder. As such, succession is not a birthright.
3. No distinction is drawn between immovable and movable property.
4. The value of the inheritance is ascertained after paying off the deceased person’s debts and funeral expenses.
5. No distinction is drawn between self-acquired and ancestral property.
Following are the Property Rights:
For a Daughter
1. She is entitled to ½ of the share of a son in her father’s property.
2. She has absolute control over this share and can dispose of it as per her wish.
3. She has the right to reside in her natal home and to be maintained by her parents till she is married.
4. If she is divorced, the responsibility of maintenance falls upon her parents after the iddat
For a Mother
1. A mother is entitled to 1/6th of her deceased son’s property.
2. If the deceased son did not have any children, her share is 1/3rd.
For a Married Woman
1. Mehr or dower constitutes her property and she has all rights over it.
2. If the husband does not provide Mehr, the woman may as well deny marital obligations.
3. The husband is free to gift entirely as many properties to her wife.
For a Divorced Woman
1. She retains all rights upon Mehr even after divorce.
2. Under Section 125 of the CrPC, a divorced woman is entitled to maintenance from her husband if she has a minor child and till she remarries.
3. Maintenance is illegal under the Shariat Act. However, for fairness, the Muslim Women (Protection of Rights on Divorce) Act, 1986 has been instituted by the Indian Parliament.
4. If capable, her children are supposed to maintain her after divorce.
For a Widow
1. A childless Muslim widow is entitled to 1/4th the property of her deceased husband.
2. If the widow has children and grandchildren, her share is 1/8th of the deceased husband’s property.
3. If there are 4 wives, her share stands at 1/16th of the deceased husband’s property. (It can be calculated accordingly for 2 or 3 wives.).
4. A divorced widow would be entitled to her share till she remarries.
Christian Women’s Right to Property
Sections 31 to 49 of the Indian Succession Act, 1925 deal with Christian succession.
For a Daughter
1. She inherits an equal share as her brother in her father’s or mother’s property.
2. She has the right to be maintained by her parents till she marries.
3. Upon attaining 18 years of age, she gets complete rights over her property.
For a Mother
1. She is not entitled to maintenance from her children.
2. She gets 1/4th of the property of her unmarried deceased child.
For a Married Woman – She is entitled to maintenance from her husband. Failure to provide maintenance is a valid ground to seek divorce.
For a Widow – A widow is entitled to 1/3rd of the property of her deceased husband, the rest being divided equally among her children.
According to Sunil Fernandes, a Supreme Court lawyer, “The Indian Christian widow’s right is not an exclusive right and gets curtailed as other heirs step in. Only if the intestate has left none who are of kindred to him, the whole of his property would belong to his widow.” Another peculiar feature is that the widow of a predeceased son gets no share, but the children whether born or in the womb at the time of the death would be entitled to equal shares.
References
1. Halder, Debarati, and K. Jaishankar. “PROPERTY RIGHTS OF HINDU WOMEN: A FEMINIST REVIEW OF SUCCESSION LAWS OF ANCIENT, MEDIEVAL, AND MODERN INDIA.” Journal of Law and Religion, vol. 24, no. 2, 2008, pp. 663–687. JSTOR, www.jstor.org/stable/25654333. Accessed 9 June 2021.
2. Bishin, Benjamin G., and Feryal M. Cherif. “Women’s right to Property, and Islam.” Comparative Politics, vol. 49, no. 4, 2017, pp. 501–519. JSTOR, www.jstor.org/stable/26330985. Accessed 9 June 2021.
3. Property Rights of Women in India and Maintenance, available at: https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/meera-didi-se-poocho/property-richts-of-women-in-india-and-maintenance (Last visited on June 9, 2021).
4. India: Women And The Supreme Court: Court As A Champion of Women’s Rights, available at: https://www.mondaq.com/india/family-law/977388/women-and-the-supreme-court-court-as-a-champion-of-women39s-rights (Last visited on June 9, 2021).
5. Progressive Judicial Orders Boost Hindu Women’s Inheritance Rights, available at: https://www.theleaflet.in/progressive-judicial-orders-boost-hindu-womens-inheritance-rights/ (Last visited on June 9, 2021).
6. Women’s property rights, protection from desertion by husbands among key Supreme Court decisions in 2020, available at: https://www.indialegallive.com/cover-story-articles/il-feature-news/property-rights-women-supreme-court-hindu/ (Last visited on June 9, 2021).
7. Rights of Women in Inheritance in Islam, available at: https://thecompanion.in/rights-of-women-in-inheritance-in-islam/ (Last visited on June 9, 2021).
[1] (2020) AIR 3717 (SC)
[2] (2007) 3 SCC 169
[4] (2016) 2 SCC 36
[5] (2018) 3 SCC 343
This article has been written by Tazeen Ahmed, 1st Year B.A. LL.B(Hons) student at Jamia Millia Islamia, New Delhi.
