Every person by virtue of being born as human has the inherent right to be treated with dignity and equality in every aspect of life. However, women though considered as human being is relegated to a position of subjugation and oppression as she is made to suffer inequality and indignity with respect to her rights, more particularly her right to property is violated blatantly. The Indian patriarchal society, intentionally disregards the Hindu women’s right to property, pushing her to a position of inferiority in social and economic aspects of human relationship.
In ancient times, Hindu women’s property rights were hedged with manifold limitations. However attempts have been in India to improve the position of Hindu women with regard to her succession and inheritance right. The present paper will portray the position of Hindu women’s right to property from customary law to the present Hindu Succession (Amendment) Act, 2005.
The objective of the present paper is to examine the Hindu women’s property rights under The Hindu Succession Act, 1956 and Hindu Succession (Amendment) Act, 2005.
It also analyses the different scenario between the past and the present as such.
The methodology adopted in the present paper is doctrinal legal research, study of case laws and textual analysis.
In India, Hindus were governed by Shastric and Customary laws that varied from region to region resulting in multiplicity of laws with diversified nature being followed in different schools and subschools of Hindu law like Mitakshara, Dayabhaga, Nambudri etc.
Consequently property laws among Hindus were very complex favoring only males and discriminating females. In the entire history of Hindu law, women’s right to hold and dispose property has been recognized. Two types of property which she could hold were- Stridhana and Women’s Estate.
However the quantum of property held by her was always very meager. Stridhana was the absolute property of a female Hindu over which she had full powers to alienate, sell, gift, mortgage, lease or exchange during her maidenhood and widowhood, but certain restrictions were imposed on her power, if she was married. On her death, all types of stridhana passed on to her own heirs.
The property in respect of which a Hindu woman was a limited owner constituted her limited estate or women’s estate or widow’s estate. The Hindu female owner had limited power of disposal i.e. she could not ordinarily alienate the corpus except for legal necessity, benefit of estate and for religious duties. On her death, the women’s estate devolved upon the heir of the last full owner known as reversionary who could be a male or female.
After the failure of the piecemeal legislations, Hindu law relating to property rights of women remained static and discriminatory for a long time. With the advent of independence, the Constitution makers in India took note of the adverse discrimination perpetuated against women depriving them of social and economic justice and gender equality as envisaged in the Preamble to the Constitution of India, Fundamental Rights in Part III (Articles 14, 15, 16), Directive Principles of State Policy in Part IV (Articles 38, 39, 39A, 44) and Fundamental Duties in Part IVA [Article 51 A (e)].
In spite of these constitutional mandates women continued to be subjugated to patriarchal domination and deprived of her rights including property rights.
Taking a stand in favour of women rights, the then Prime Minister of India, Pandit Jawaharlal Nehru expressed his commitment to carry out reforms to remove disparities and disabilities suffered by Hindu women. Consequently amidst strong resistance from orthodox Hindu section, the Hindu Succession Act was enacted in 1956 and came into
force on 17th June 1956.
THE HINDU SUCCESSION ACT, 1956
The Hindu Succession Act, 1956 is an Act to amend and codify the law relating to inestate succession among Hindus. The Act applies to all Hindus including Buddhists, Jains and Sikhs and lays down a uniform and comprehensive system of inheritance and applies to those governed by Mitakshara and Dayabhaga schools as well as other schools such as Murumakkattayam, Aliyasantana and Namdudri.
The Hindu Succession Act 1956 reformed the personal law of Hindus and conferred upon Hindu women absolute and full ownership of property instead of limited rights to property as evident from Section 14(1) of the Act which provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as a full owner thereof and not as a limited owner. The Apex Court in Punithavalli v Ramanlingam AIR 1970 SC 1730 :(1970) 1 SCC 570, held that the right conferred under Section 14 (1) is a clear departure from Hindu law, text or rules, and the estate taken by a female Hindu is not defeasible by any rule of Hindu Law and is an absolute ownership. Explanation appended to sub-section (1) of Section 14 enumerates different methods by which woman may have acquired property or would acquire property and states that ‘property’ includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person whether 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 such property held by her as stridhana immediately before the commencement of this Act
The Act is not retrospective in operation. But section 14 of the Act has qualified retrospective application. Section 14 (1) confers an absolute right on the widow who acquired the property on the death of her husband prior to the commencement of the Act and was enjoying only a limited estate under the customary Hindu law. However, it will convert only those women’s estate into full estate provided the ownership of property is vested on her and she has possession of the estate concerned when the Hindu Succession Act 1956 came into force.
The gender biased scheme in the Hindu Succession Act, 1956 under the guise of joint family Mitakashara coparcenary which retained only males as coparceners, came under scathing criticism from the supporters of gender equality. Section 6 of the Act provided that whenever a male Hindu, having an interest in a Mitakshara coparcenary
property died after the commencement of this Act, then his interest in property would devolve by rule of survivorship and not in accordance with the Act. However, if the Mitakshara coparcener died leaving behind a female heir of Class I or a male heir claiming through her, then the interest would devolve by testamentary or inestate succession in accordance with the Act and rule of survivorship is inapplicable (Proviso to Section 6). This meant that Hindu females could not inherit ancestral property by birth right and was excluded from joint family coparcenary under Mitakshara system. For instance, if a joint family property was divided, then each male coparcener took his share and female got nothing.
REFORMS IN SUCCESSION LAW THROUGH STATE AMENDMENTS
Acknowledging the discrepancies in regard to Hindu women’s position in Mitakshara coparcenary, certain states, viz., Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka in India, took cognizance, that for economic and social justice to prevail, women must be treated with equality. Accordingly, the Kerala Joint Hindu Family System (Abolition) Act, 1975 completely and fully abolished male’s right by birth to property and brought an end to the joint Hindu family system. No one can claim any interest in ancestral property on ground of birth in the family. By making amendment to section 6 of the Hindu Succession Act, 1956, the States of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka in 1986, 1989, 1994, 1994 respectively, declare that daughters are coparceners in Joint family property.
As per the Amendment Acts of these four states, daughter of a coparcener in a joint Hindu family governed by Mitakashara system, is entitled to be a coparcener by birth in her own right in coparcenary property and be subject to similar liabilities and disabilities as incurred by sons.
Thus, by virtue of these amendments, dual rights have been conferred on daughters, as on one hand, she becomes coparcenary property right owner in her natal joint family, and on the other hand, she becomes a member of the marital joint family after her marriage.
LAW COMMISSION OF INDIA
State amendments only brought sweeping reforms in their respective places. But, Hindu women in other states of India continued to be subjugated to inequality in relation to their property rights because of the shortcomings of Hindu Succession Act, 1956. To ameliorate the position of Hindu females, initiative was taken up the Law Commission of India which in its 174th Report on “Property Rights of Women: Proposed Reforms under Hindu Law” under the Chairmanship of Justice B. P. Jeevan Reddy made important recommendations, stating that discrimination against women is writ large in relation to property rights, social justice and demanded that woman should be treated equally both in the economic and social system.
The recommendations of the Law Commission of India found reflection in the Hindu Succession (Amendment) Act, 2005 with the amendment of section 6 and omission of sections 4(2), 23 and 24 which had under Hindu Succession Act, 1956 (original Act) perpetuated gender biasness and inequality.
In the year 2008, the Law Commission of India in its 207th Report under the Chairmanship of Justice A. R. Lakshmanan, recommended the proposal to amend Section 15 of the Hindu Succession Act, 1956 in case a female Hindu dies inestate leaving her self-acquired property with no heirs. This proposal has not been incorporated in the Act till date.
THE HINDU SUCCESSION (AMENDMENT) ACT,
2005 [THE AMENDMENT ACT, 2005]
The Hindu Succession (Amendment) Act, 2005 after having been passed in both the Houses of the Parliament on August 2005, received the assent of the President of India on 5th September 2005 and came into force from 9th September, 2005 incorporating the reforms suggested in the 174th Report of the Law Commission of India.
The Amendment Act, 2005 deleted Section 4(2) of the Hindu Succession Act 1956, and paved the way for women’s inheritance in agricultural lands equally to that of males.
The amendment has done away with the discriminatory state-level tenurial laws and benefited many women who are dependent on agriculture for their sustenance.
The Hindu Succession Amendment Act, 2005 has addressed a very pertinent matter relating to rights of daughters in the Mitakashara coparcenary and thus elevated daughter’s position by amending section 6 of the Hindu Succession Act 1956. The amended Section 6 deals with devolution of interest in coparcenary property.
Section 6(1) provides that the daughter of a coparcener in a joint family governed by the Mitakshara law shall, on and from the date of commencement of the Hindu Succession (Amendment) Act, 2005, by birth become a coparcener in her own right in the same manner as the son. She shall have the same rights and be subjected to the
same disabilities in the coparcenary property as that of a son and any reference to a Hindu Mitakshara Coparcenary shall be deemed to include a reference to a daughter of a coparcener.
Any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th December, 2004, shall not be affected or invalidated by the provision in Section 6(1) [Proviso to section 6(1)].
Further any property to which female Hindu becomes entitled by virtue of sub-section (1) of section 6, shall be held by her with the incidents of coparcenary ownership and shall be regarded, as property capable of being disposed of by her by will and other testamentary disposition [section 6(2)].
Section 23 of the Hindu Succession Act, 1956 has been omitted by the Amendment Act, 2005, as a result of which, at present all daughters, both unmarried and married, are entitled to same rights as sons to reside in and to claim partition of the parental dwelling home.
The Amendment Act, 2005 has also omitted section 24 which had disqualified certain widows on remarriage from succeeding to the property of inestate. Now the widow of a pre-deceased son or the widow of a pre-deceased son of a pre-deceased son or widow of the brother can inherit the inestate’s property even if she has remarried.
Moreover the Amendment Act, 2005 has added some more heirs to the list of Class I heirs who are daughter’s daughter’s daughter, daughter’s son’s daughter and son’s daughter’s daughter and daughter’s daughter’s son.
The position of Hindu woman in respect of her property right has undergone unprecedented transformation from ancient times to the Hindu Succession (Amendment) Act, 2005. The journey from exclusion to recognition of Hindu daughters in Mitakshara coparcenary has been remarkable, but non-inclusion of other Hindu females is irrational and unjustified, for all women are equally entitled to economic and social justice which the Constitution of India proclaims.
Inspite, of some progress brought by the Hindu Succession (Amendment) Act, 2005, females are still denied their lawful rights in the predominant patriarchal society. Silence and selfdenial on the part of women of being subjugated to unequal property rights reinforces and further perpetuates injustice.
Hindu women must be made aware through legal literacy campaigns and social awareness programmes about their property rights, so that they may fight for what is rightfully theirs, by virtue of being born as human beings. Concerted efforts on the part of the government, nongovernmental organizations, public and women should be taken up to bring about attitudinal change in the mindset for promoting equal rights based on humanity for achieving gender equality.
Prof. Dr. Nasreentaj, Saveetha School of Law, Saveetha University, Chennai.