President, Society for Social Regeneration & Equity,
Partner, DroitINDIA Legal Services
~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.
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.
[3] Dying without a Will.
[4] Hindu Succession Act,
1956
[5] Section 15 of HSA
[8] Related in any other way
by blood.
[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.
