Thursday, 24 October 2013

Women's Property Rights in India


Shuma Talukdar
President, Society for Social Regeneration & Equity, 
Partner, DroitINDIA Legal Services

 “Women are the only oppressed group in our society that lives in intimate association with their oppressors.”     
~Evelyn Cunningham


Women’s rights to property in India are limited compared to men. The denial and violations of women’s property rights widens the economic disparity between men and women. Women’s property rights are affected by complex web of statutory laws, personal laws, social norms and customs.

The applicability of personal laws depends on a persons’ religious affiliation. For instance, Hindus, Sikhs, Buddhists and Jains are governed by one code i.e. The Hindu Marriage Act, 1955 and The Hindu Succession Act, 1956, whereas Muslims have not codified their laws. Muslim women are governed by Muslim Personal Law (Shariat) Application Act, 1937 and Muslim Women’s (Protection of Rights on Divorce) Act, 1986. Tribal women’s right to property are governed by customs and norms of the tribe they belong. In a word there is no uniform body of law governing Indian women’s property rights. Her right to property depends on her religion, her marital status, part of the country she belongs, her tribal association and so on. Not only these it also depends on her status in her family: whether the woman is a daughter, mother, wife, married, unmarried, deserted or widow. Her property rights also depend on the kind of property at issue, i.e. whether the property is hereditary/ancestral or self-acquired, land or dwelling or matrimonial property. To complicate it further our constitution authorized both the central and the state governments to enact laws on matters of succession and hence the state can, and some have, enacted their own variations of property laws within each personal laws.

Indian Constitution: Framework of Equality

Indian constitution has a substantially elaborated framework to ensure equality amongst its citizens. It not only guarantees equality to all its persons under Article 14 as a fundamental right, but also expended this Article to make room for affirmative action and positive discrimination. Under Article 15 the constitution prohibited discrimination on the ground of religion, race, caste, sex, place of birth or any of them. Article 21 of the Constitution as an umbrella provided and included within it right to everything which would make life meaningful, including the right to food, clean air, roads, health, and importantly the right to shelter/housing.[1]

Further the Directive Principle of the State Policy under Part IV of the Indian Constitution lends support to the paradigm of equality, social justice and empowerment. One of the purposes of the directive principles is to guide the conscience of the state. They have been used to constructively interpret the scope and ambit of the fundamental rights, which also hit any discrimination or unfairness towards women.

Recommendations of Women Commissions on Status of Women in India

In 1975 a committee on the status of women was constituted by the Government of India, to evaluate the legal provisions in regards to women, so that a woman is not left completely destitute. Some important recommendations made by the committee were:

1.     Legislative measures should be taken to bring Christian women of Kerala under the Indian Succession Act.

2.     The Indian Succession Act should be extended to Goa and Pondicherry to undo the relegation of widows to fourth position in matters of succession and to undo the inferior position to which Christian women are relegated by not being considered as full owners of property.

3.    In regards to succession to property among Hindus, the right by birth should be abolished and the Mitakshara coparcenary should be converted into Dayabhaga (Mitakshara coparcenary perpetuates inequality between sons and daughters as only males can be coparceners, and inheritance is only through the male line).

4.    The discrimination between married and unmarried daughters regarding right of inheritance of dwelling houses caused under Section 23 of the Hindu Succession Act should be removed.
                                                             
5.     There is need for legislation in Muslim Law to give equal share of property to the widow and daughter along with sons as done in Turkey.

6.    In Matrimonial property, legal recognition should be given to the economic value of the contribution made by the wife through household work for purposes of determining ownership of matrimonial property, instead of continuing the archaic test of actual financial contribution; on divorce or separation, the wife should be entitled to at least 1/3rd of the assets acquired at the time and during the continuation of marriage.

The National Commission for Women had also recommended certain amendments in laws related to women and property. 

1.     Under Indian Succession Act, 1925 it suggested that Sections 15 and 16 should be amended, removing mandatory linkage of wife's domicile with that of the husband. Further, it recommended that appointment of testamentary guardian may be the right of both the parents acting concurrently.

2.    Widows should be granted letter of administration to deal with the estate of the deceased husband unless excluded by the Court for sufficient reasons.

3.    In Hindu Succession Act, 1956, it suggested equal distribution of not only separate or self acquired properties of the diseased male, but also of undivided interests in coparcenary property. It further suggested daughter to be a coparcenary by birth in the same manner as a son.

4.    The right of any heir to claim partition of a dwelling house to arise only after settlement of widowed mother's rights.

A remarkable dent in this situation was made by the Hindu Succession [Andhra Pradesh] Amendment Act, 1985. This law stated that, in any circumstances, the rights of the daughter are equal to that of the son. This new law found the Mitakshara system in violation of the fundamental right of equality bestowed upon women in Indian Constitution. Following Andhra Pradesh, Tamil Nadu, Maharashtra and Kerala also subsequently amended their laws by including women as members of the coparcenaries.

HINDU WOMEN’S RIGHT TO PROPERTY

The Property right of a Hindu woman largly depends on her status in the family i.e. whether she is a daughter, married or unmarried or deserted, wife or widow or mother. It also depends on the type of property in issue i.e. whether the property is self-acquired or ancestral/hereditary.




The Hindu Succession Act, 1956:
 
Prior to Hindu Succession Act, 1956 ‘Shastric’ and ‘Customery’ law that varied from region to region use to govern the Hindus. The main scheme of the Hindu Succession Act is:

1.     The hitherto limited estate given to women was converted to absolute one.

2.     The principle of simultaneous succession of heirs of a certain class was introduced.

3.    In the case of the Mitakshara coparcenary, the principle of testamentary[2] succession was applied so as not to exclude women.

4.    Remarriage, conversion and unchastity were no longer held grounds for disability to inherit.

5.     Even the unborn child, son or daughter, has right if s/he was in the womb at the time of death of the intestate[3].

Under old Hindu Law woman do not have share in ancestral property by birth. They were entitled to get the expenses of their food, shelter, clothing, education and marriage out of the property i.e. she was entitled to the properties only as a life-estate but this disability has been removed by Section 14 of HSA[4]. Now a woman can acquire and hold property as an absolute owner. Now the female members have a full right over the property. They can sell it, gift it, Will it away to whomsoever they wish. Now it is the right of the mother, grandmother, unmarried sister, widowed sister, widowed daughter-in-law and deserted sister to stay in the family house as long as it is in existence.
 
The next important change has been bought by Section 6 of HSA by virtue of which on the death of a member of a coparcenary, the property devolves upon his mother, widow and daughter, alongwith his son, by testamentary or intestate succession, as the case may be, and not by survivorship.

Section 23 “when a coparcenary property includes a dwelling house, division shall not arise until the male coparcenaries choose to divide their respective shares” was removed by the amendment of HSA of 2005 resulted in removal of the disabilities of the women. This is a great step of the government so far for improving the social and economical status of the women.

The amendment of the Hindu Succession Act of 1956 (September 2005), have improved the property right of Hindu women. The Act now covers agricultural holdings whereby a daughter is recognized as heir by birth in the same manner as her brother. The sections that prevented a female residing in the family house from asking for partition (dividing up) of the house and did not allow widows remarrying to inherit the property of their deceased husband have been repealed. However, under the Hindu Succession Act, daughter still have limited rights regarding ancestral property. Additionally a Will can deny a daughter all rights to parental property. This is because Hindu parents’ right to hand self-earned property is unrestricted and therefore they often do leave such property on to their sons.

·         A male Hindu can make a Will of his share in ancestral property. If he doesn’t make a Will of his share, then, upon his death, his share of the property will be divided amongst his Class I heirs. Each shall be granted one share of the deceased property. His Class I heirs will be:

Sons
Daughters
Widow
Mother
Children of pre-deceased son
Children of pre-deceased daughter
Widowed daughter in-law
Children of pre-deceased grandson

·       In case there is no person, specified as Class I heirs, then property will devolve upon the Class II heirs. His Class II heirs will be:


1.     Father
2.     Son's daughter's son
3.     Son's daughter's daughter
4.     Brother
5.     Sister
6.     Daughter's son's son,
7.     Daughter's son's daughter,
8.     Daughter's daughter's son,
9.     Daughter's daughter's daughter.
10.  Brother's son,
11.  Sister's son,
12.  Brother's daughter,
13.  Sister's daughter.
14.  Father's father; father's mother.
15.  Father's widow; brother's widow.
16.  Father's brother; father's sister.
17.  Mother's father; mother's mother
18.  Mother's brother; mother's sister.


·        If a Hindu woman dies without making a Will, her property will divided among her Class I heirs[5]. Her Class I heirs are:

1.     Her sons and daughters, including grandchildren in case her children are deceased and the husband. If there is a child in the womb of the female when she passes and the child lives, the child is eligible to inheritate just as any other son or daughter.

2.     In absence of the above class of heirs, the property would devolve upon the heirs of her husband.

3.     In absence of the heirs of her husband, property will devolve upon her mother and father.

4.     Then to the heirs of her father.

5.     And lastly to the heirs of her mother.

However, if any property was inherited by a female Hindu from her parents the same shall devolve upon the heirs of her father in the absence of sons or daughters (including the children of any pre-deceased son or daughter).  Similarly, in the absence of sons or daughters (including the children of any pre-deceased son or daughter), if the property was inherited by a female Hindu from her husband or father-in-law, it shall devolve upon the heirs of her husband.

MUSLIM WOMEN’S PROPERTY RIGHTS


Indian Muslims are broadly divided into two schools of thoughts: the Sunnite and Shiite. The Sunnite School is the predominant school in India. This is categories as Hanafis, Shafis, Malikis and Hanballs. The vast majority of Muslims in India, Pakistan, Afghanistan, and Turkey are Hanafis. 
  
·        Now the question is are there any difference between Sunni and Shia law of inheritance?
o    Sunni rules only count those relatives as heirs whose relation to the deceased person is through a male like son’s daughter, son’s son and father’s mother.
o    Shia includes even those persons as heirs who are related to the deceased through a female Eg. Daughter’s son, daughter’s daughter.

Succession & Inheritance:
 
The Islamic design of inheritance discloses three features, which are markedly different from the Hindu law of inheritance: (i) the Koran gives specific shares to certain individuals (ii) the residue goes to the Agnatic[6] heirs and failing them to Uterine[7] heirs and (iii) bequests are limited to 1/3rd of the estate, i.e., maximum 1/3rd share in the property can be Willed away by the owner.

The main principle of Islamic inheritance law which marks an advance vis-à-vis the pre-islamic law of inheritance, which has significant bearing on the property rights of women, are: (i) the husband or wife was made an heir (ii) females and Cognates[8] were made competent to inherit (iii) parents and ascendants were given the right to inherit even when there were male descendents (iv) as a general rule, a female was given ½ of the share of the male. For example, if a daughter co-exists with the son, or a sister with brother, the female gets one share and the male two shares and (V) nearer heir excludes the remoter one.
 
The Hanafi jurists divided heirs into seven categories; three principle and four subsidiaries. The 3 principal heirs are Koranic heirs, Agnatic heirs and Uterine heirs. The 4 subsidiaries are successor by contract, the acknowledge relative, the sole legatee and the state by escheat.

Property division:
 
·         Widow: Share in her husband’s property
o    Will get 1/8th share (when there are children)
o    Will get 1/4th share (when there are no children)
·         Share of two/more widows
o    Together will get 1/8th share (when there are children)
o    Together will get 1/4th share (when there are no children)
·         Daughter: Share in father’s property
o    Share of ½ (when has no brother)
o    ½ of whatever shares the brother gets (when there is brother)
·         Mother: Share in son’s property
o    Will get 1/3rd share of her son’s property (when there are no other children)
o    Will get 1/6th share of her son’s property (when there are children)
·         Grand mother: Share in grandson’s property
o    Maternal grandmother will get 1/6th share (only if there is no mother or paternal grandmother)
o    Paternal grandmother gets a share of total property (only if there is no mother or grandfather)

Dower or Maher:
 
A sum of money or any property which the wife is entitled to get from the husband on marriage is known as Dower. It can be fixed before or at the time of marriage. There are two types of Maher; Prompt: it is the amount given to the wife immediately on solemnization of marriage; Deferred: amount given to the wife when her marriage has ended either by death of her husband or by divorce. The Supreme Court of India has laid down in Kapore Chand V. Kadar Unnissa[9] that maher ranks as a debt and the widow is entitled, along with other creditors of her deceased husband, to have it satisfied out of his estate. The Supreme Court has laid down that the widow has priority over other creditors, but maher as debt has priority over the other heir’s claims. This right is known as the widow’s right of retention.

Will or Wasiyat[10]:
 
The bequest of property (or money) after one’s death to a particular person is called Will. How much of his/her property can a Muslim bequeath? A Muslim cannot bequeath more than 1/3rd of his total property but if a woman has no blood relations & her husband would be her only heir, then she can Will 2/3rd of her property in his favor. This amount is calculated after the funeral costs and debts have been paid. However if the marriage is registered under the provisions of the Special Marriage Act, 1954, the Indian Succession Act, 1925 will be applicable and if the Will relates to immovable property situate within the State of West Bengal, and that of Madras and Mumbai, the Indian Succession Act, 1925 shall be applicable.

CHRISTIAN WOMEN’S PROPERTY RIGHTS


The Christian Succession Laws were codified by the Indian Succession Act of 1865, and later by the Indian Succession Act, 1925. Section 31 to 49 of the Act specifically deals with the Christian Law of Inheritance. The Indian Christian widow’s right is not an exclusive right and gets curtailed as the other heirs step in. Only if the intestate has left none who are kinder to him, the whole property would devolve upon his widow.
 
In case the deceased has left a widow and any lineal descendent then 1/3rd of the property goes to the widow and the remaining 2/3rd will be equally divided among the descendents. Where there are no lineal descendent but the deceased is left with a person who are kindred to him, ½ of the property devolves to his widow and the remaining ½ goes to the kindred. Regarding the shares of predeceased, both the boys and girls are entitled to equal share. Husband surviving the wife have the same rights in respects of her property as a widow have in respects of her husband property.

Where there is no lineal descendent, after having deducted the widow’s share, the remaining property devolves upon the father of the intestate in the first instance. In case the father of the intestate is dead but mother, brother and sister are alive, they all would share the property equally. If intestate father has died, but his mother is living and there is no surviving brother, sister, nieces, or nephews, then, the entire property would belong to the mother. A peculiar feature of Christian law of inheritance is the widow of a pre-deceased son gets no share in her father-in-law’s property, but the children, born or in womb at the time of death of the intestate will be entitled to have equal share in their grandfather’s property.

PARSI WOMEN’S PROPERTY RIGHTS


Prima faci the property rights of the Parsis are quite gender just. Section 50 to 56 of the Indian Succession Act 1925 specifically deals with Parsi intestate. There is no distinction for the purpose of intestate succession between those who are actually born during the lifetime of the deceased person and those who were only conceived in the womb. Basically, a Parsi widow and her children irrespective of their gender and marital status gets equal share in the property of the intestate while father and mother get half of the share of each child. For instance if a person dies living behind his father, mother, widow, son and daughter than the property will be divided into eight equal parts and widow, son and daughter will be entitle to have 2/8th of the share whereas father and mother will be entitled to have 1/8th of the share.

If the intestate leaves widower but no widow or widower of a lineal descendant, the widow or widower shall take ½ of the property. If an intestate leave behind a widower and widow or widower of any lineal descendent both of them shall receive 1/3rd of the property each and in absence of widower the widower of the lineal descendents shall receive 2/3rd of the property in equal share.  The residue after the above division shall be distributed in the following order:

(1) Father and mother.
 
(2) Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate.

(3) Paternal and maternal grandparents.

(4) Children of paternal and maternal grandparents and the lineal descendants of such of them as have predeceased the intestate.

(5) Paternal and maternal grandparents' parents.

(6) Paternal and maternal grandparents' parents' children and the lineal descendants of such of them as have predeceased the intestate.

JEWISH WOMEN’S PROPERTY RIGHTS


Jewish women’s property rights in India are governed by Indian Succession Act, 1925, just like Christian more specifically under  section 31 to 49 of the Act. On the death of the intestate, the property devolves upon the husband or upon those who are kindred to the deceased. A widow is not entitled to inheritance if by a valid contract before her marriage; she has been excluded from distributive share of her husband’s estate. Where the intestate has left a widow but no lineal descendants and the net value of the property does not exceed more Rs. 5000, the whole property belongs to the widow with interest of 4% per annum until payment. The net value of the property shall be ascertained by deducting from the gross value thereof all debts, and funeral and administrative expenses of the intestate, and all other lawful liabilities and charges to which the property shall be subjected. In presence of the lineal descendent 1/3rd of the property goes to the widow and 2/3rd shall go to the lineal descendants. If the deceased has left with no lineal descendent but has left with persons who are kindred to him ½ of the property shall go to the widow and other half shall go to those who are kindred to him and if  left with none, the whole property goes to the widow. Properties of Jewish women are governed and distributed in the similar way as the Jewish mans' property would be. 

CONCLUSION

Several legal reforms and positive steps have taken place since independence in India on equality of women when it comes to property. Yet equal status remains illusive. The theoretical reforms so far have not been adequate to give women right to property on the same footing and terms as to men. It varies with states, region and religion. Though law has given equal rights it’s the practices, customs and norms that stand as an obstacle in giving recognization to the women.

To some extent women themselve are responsible for their present condition. They relinquish their rights as daughters, wives, daughters-in-law, mothers or sisters. This further gets accentuated when they lose the security of the family, as a single women, divorced or separated or widow. Social awareness of the rights under law, attitudes of the individual and determination to bring change can ensure social justice and equality in our society and can improve the status of the women.

To quote Justice Sujata V. Manohar of Supreme Court of India "It is not easy to eradicate deep seated cultural values or to alter traditions that perpetuate discrimination. It is fashionable to denigrate the role of law reform in bringing about social change. Obviously law, by itself, may not be enough. Law is only an instrument. It must be effectively used. And this effective use depends as much on a supportive judiciary as on the social will to change. An active social reform movement, if accompanied by legal reform, properly enforced, can transform society."


[1]  Shantistar Builders V. Narayan Kimalal Tortame: (1990) 1 SCC 520, P.G Gupta V. Stae of Gujarat (1995) Supp 2 SCC 182, Chameli Singh V. State of U.P (1996) 2 SCC 549, Corporation V. Nawav Khan Gulab Khan & Ors (1997) 11 SCC 121, Bhandu Mukti Morcha V. UOI (1984) 3 SCC 161.
[2] Trust arises upon the death of testator.
[3] Dying without a Will.
[4] Hindu Succession Act, 1956
[5] Section 15 of HSA
[6] Person who are related purely through males by blood
[7]  Children of same mother but different father.
[8] Related in any other way by blood.
[9] (1950) SCR 747
[10] A Muslim’s Will can be written or oral. There is no specific form for it but the intention of making a Will must be clear.

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