Hindu Women’s Property Rights

India is a religiously diverse country. Religious norms and laws are the principle source of the codified personal laws governing marriage, divorce, inheritance, adoption, guardianship and separation. These laws vary with the person’s religion, faith and culture. The Hindu Succession Act, 1956 (hereafter, HSA) is a personal law legislature which governs intestate succession of a Hindu’s property. It acknowledges and takes forward the idea of dual mode of devolution of property laid down by the Mitakshara School and Dayabhaga School. Adhering to both the schools, the HSA brings a uniform system of devolution of intestate property. The act was enacted to put an end to deep-rooted discriminatory inheritance laws between men and women.[1] Even after the enactment, women continue to struggle in inheriting property that is rightfully theirs because of the loopholes in the act. According to the National Family Health Survey (2015-16) only 37 per cent of women in India own a house, jointly or by themselves.[2] There are a number of socio-legal factors at play which makes it difficult for a woman to attain equitable property rights and economic independence. This article analyses section 15 and section of the HSA and bring out the gender biases present in the act.

The Hindu Succession Act, 1956

Testamentary succession and Intestate Succession are the two types of succession. In the former type, the deceased leaves behind a will, which mentions how the property has to be devolved. Whereas in the latter, a person dies without leaving a will; therefore, a question on dissolution of property arises.

The HSA deals with intestate succession and has differentiated laws for men and women. The succession from a female dying intestate is dependent on the source from where she acquired the property. The act demarcates the properties possessed by a female in the following three categories,

  1. Property inherited by her from her parents,
  2. Property inherited by her from her husband/ father-in-law, and
  3. Properties not governed by the first two categories

Section 15 and section 16 of the HSA lay down the procedure to devolve property of a woman dying intestate. The rule is that all the property would be inherited by her children (or children of pre-deceased children) and her husband. In their absence, the property will go back to the source from whom the property was possessed. That is, if she has inherited property from her father, it will go back to heirs of the father. Similarly, property inherited by her from her husband or father-in-law, it will go back to her husband and his heirs. The third category of property includes self-acquired property and properties acquired from other sources. Section 15 lays down the order of devolving this category of property as follows,

  1. Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband
  2. Secondly, upon the heirs of the husband
  3. Thirdly, upon the mother and father
  4. Fourthly, upon the heirs of the father
  5. Lastly, upon the heirs of the mother.”[3]

Section 16, further mentions the procedure of distribution among the heirs of a female dying intestate. The order of devolution laid down in Section 15(1) will be strictly followed while distributing the property. If the children of intestate female have pre-deceased her, then children of pre-deceased children will be entitled to the share of property their parents. Heirs of intestate female’s husband, father and mother will inherit in the order mentioned and in the same capacity as intestate female’s husband, father or mother.

Analysis

A married woman is a part of two families during her lifetime. A home where she is born and brought up- her parental home, and a home where she is married- her matrimonial home. As a result of deep-rooted patriarchy, the matrimonial home is considered to be the only home of a married women. A woman is considered as ‘Paraya Dhan’ (liability) who moves from one home to another. She is bound to fulfil the obligations bestowed upon her by her matrimonial home. In traditional Indian societies, due to lack of transportation and communication channels, people lost touch over a period of time. A daughter had no means to stay connected to her parental home; henceforth treated just as a member of her matrimonial home, severing her ties with her parents and siblings.  Over time, her emotional and sentimental bond with her parental family members withered away. It was consequential that her relatedness and emotional bend would be more towards her matrimonial home. 

The law in its current shape is backed up by this social notion. The rights of woman arise from the obligations that she has towards her matrimonial home and the relationship she develops over years at the cost of severing her ‘time-bound’ relations with her parents and siblings.

Development in communication and transportation has contributed to keep the relationship a married woman shares with the member of her parental home intact. A woman is presumed to be equally invested in both her homes. The 2005 amendment in the HSA upholds this presumption by giving daughters the right to claim a share in the joint family property.[4]

The landmark 2005 amendment in the HSA gives daughter the right to coparcenary by birth. She now has the same rights and shoulders the same liabilities as her brothers. Presuming that rights and obligations go hand in hand; therefore, if she is enjoying the rights, she also has to fulfil the obligations towards her parental home. She cannot escape them on the pretext that she is a member of just her matrimonial home.  

In V.M. Arbat v. K.R. Sawai[5], it was held that Section 125 of the CrPC includes both son and daughter; they both have a duty to maintain their parents. This interpretation originates from a belief that a daughter is as much of an old age security as sons.[6] It is an unquestionable moral duty of children to support their ageing parents.

Drawing from the above-mentioned argument, the manner of devolution of property of a female’s intestate stated in the HSA is both controversial and contradictory. Though the laws applying to a male dying intestate and a female dying intestate are same, yet they are not equitable for women. The law is not gender-neutral and therefore is in a need for an urgent amendment.

The case of Om Prakash v. Radha Charan[7] explains the problem with the current law. Narayani who is a widow dies intestate leaving behind a lot of self-acquired property. Newly-wed Narayani became a widow within three months of her marriage. She was then asked to leave her matrimonial home as her marriage was considered a bad omen by her in-laws as a result of which her husband died. She was supported by her parents who paid for her education which subsequently led her to a well-paying job. She acquired a good amount of wealth and property.

After her death, her mother filed an application for succession certificate to acquire her daughter’s property. Same application was filled by her pre-deceased husband’s sister’s sons. It is shocking but not unusual for families to turn their back around at the times of need and to suddenly turn up to lay their hands on property of a deceased. Narayani’s in-laws who did not concern themselves with her whereabouts for almost four decades, nevertheless appeared to claim their rights over the property which she had acquired with the support from her natal home, and her own skills and labour.

The court reasoned that sentiments and sympathy cannot be the guiding principle to determine the interpretations of law, hence followed a very positivistic approach while deciding in favour of the respondents, the in-laws. As per section 15 of the HSA, in the absence of a female intestate’s husband and children, the property will pass onto heirs of the husband.

The law here, overlooks the fact that the husband has two classes of heirs, that is class I heirs and class II heirs. The respondents in this case belong to the class II (category four) heirs. They are extremely distant both in terms of relation and emotional bond that they shared with the deceased. The court while reading the law as it is, preferred the distant hires of husband over the deceased’s own parents and their heirs. Her natal family supported her during her difficult times and she couldn’t have acquired the property without their help and support.

According to the current law, a woman’s parental family has no right on her property unless even a single of her husband’s heir’s is alive. The heir could belong to any category and could be as distant.  On one hand section 25 of the HSA disqualifies a murderer from acquiring the property on the principle that no man should benefit from his own wrong, yet on another hand the law provided a gateway to the people who were a cause of narayani’s misery take over her hard-earned property.

Section 8 of the act states that blood relations will be preferred over relations arising out of the wedlock in case of succession of property belonging to a male. This section is acts ultra vires to the constitution of India as it discriminates on the basis of gender[8] and upholds the patriarchal notions of a daughter being a liability and her matrimonial home is her only home. A woman cannot prefer her blood relations over the relations arising out of marriage. Similarly, other personal laws also disfavour women’s landholding rights.[9]

Provision of the HSA need reform. National Institute for Public Finance and Policy’s (NIPFP) paper recommend the following to make the act more gender-neutral,

  1. The scheme of devolution for male and female intestates must be identical
  2. Natal families of men and women must be treated equally
  3. Male and female relatives of an intestate must be treated equally
  4. All of an intestate’s property must be treated equally; only the intestate’s relation to an heir should determine their eligibility
  5. Lineage through male and female forebears must be recognised as equal
  6. The only differentiator between different classes of heirs should be the degrees of separation from the intestate”[10]

Conclusion

The HSA was enacted with an aim to let go of the deep-rooted gender biases that existed in succession laws but it has not fully succeeded. Various amendments have tried to make the act more gender-equitable, yet gender biases persist. The amendment of the HSA is especially relevant, as more and more women choose not to bear children in their lifetimes. Social justice for women cannot be guaranteed unless and until economic independence is ensured. The assurance has to be legitimized by law without any compromises. The society is changing and it demands from the law to keep up with the evolution. The law needs to recognize women’s property rights which have long been denied to them under the notion of patriarchy and traditions.


[1] Hemant More, The Hindu Succession Act, 1956, THE FACT FACTOR, (Oct. 3, 2019), https://thefactfactor.com/facts/law/civil_law/family_laws/hindu-laws/hindu-succession-act/3829/.

[2] Geetika Mantri, Why property succession laws for women in India need reform, THE NEWS MINUTE (May 19, 2020, 01:13 PM), https://www.thenewsminute.com/article/why-property-succession-laws-women-india-need-reform-124851.

[3] Hindu Succession Act, 1956, Section 15.

[4] Hindu Succession (Amendment) Act, 2005.

[5] 1987 AIR 1100.

[6] Amita Dhanda, Daughter’s duty to maintain parents—Supreme Court on the path of son-daughter parity, 29 Journal of the Indian Law Institute 116, 116-118 (1987).

[7] (2009)15SCC66

[8]Mamta Dinesh Vakil and Ors. vs. Bansi S. Wadhwa and Ors. (06.11.2012 – BOMHC):MANU/MH/1869/2012.

[9] Geetika Mantri, Why property succession laws for women in India need reform, THE NEWS MINUTE (May 19, 2020, 01:13 PM), https://www.thenewsminute.com/article/why-property-succession-laws-women-india-need-reform-124851.

[10] Supra n.2.

Lehar Chamaria from NALSAR University of Law, Hyderabad


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