Women and their Property Rights in India: A Critical Analysis

The Author, Prerna Pahwa is a 1st Year, BA.LLB student at Vivekananda Insitute of Professional Studies,New Delhi. She is currently interning under LatestLaws.com.

INTRODUCTION

In the world we live in, patriarchy casts a long shadow over women. Women are treated as second-class citizens because people think men are always better than them. A common misconception is that women's roles in society are solely limited to domestic and household tasks. Women were schooled in the past to become trained in domestic duties and to be treated as wives' assistants. Since the beginning of time, there have been crimes against women including Sati, polygamy, and dowry that were carried out because of superstitious beliefs. Despite this, women continue to strive for their rights after 75 years of freedom.

For years, Indian women have been subjected to prejudice and denied the right to own property. Women are thought to own between 10 and 20 percent (FAO and WEF) of the world's land. The National Family Health Survey[1] and the Indian Human Development Survey are two national-level surveys that make an effort to offer gender-disaggregated data on land ownership in India. Both of these databases, despite having results that differ greatly, have some drawbacks. While the Indian Human Development Survey study [2](2010–11) predicts that 6.5% of all women over the age of 18 are landowners, the NFHS-5 data estimates that among women aged 15 to 49, 38.7% own a house or land (either jointly or by themselves) (however, this data does not record joint ownership of the property).

Furthermore, the data show a depressing picture when it comes to ownership of only agricultural land. Only 14% of agricultural landowners in India are women, and they possess roughly only 12% of the country's operational land holdings, where it is believed that more than 70% of rural women work as agricultural laborers. However, it is difficult to say with certainty how many women own land and property, and to what demographics these land-owning women belong, given the variation in methodology and findings of this study, not to mention its flaws. It becomes more challenging to develop a gender-responsive strategy that supports women owning property in the absence of trustworthy data. This article's main goal is to explain the gender-based discrimination that has historically affected property rights and inheritance rights.

FACTORS THAT AFFECT WOMEN’S PARTICIPATION IN OWNERSHIP.

There are various factors that contribute to the lower participation of women in property ownership and some of these prevailing factors are-

1. PARTRIACHAL MINDSET

The mindset of the people in a society plays a significant role in restricting women to own property. People usually believe that the primary duty of women is to look after the household chores and take care of their families and outside work will be handled by the male. This results in the non-exposure to the outside world of women in some sections of society. Even, an ongoing misconception in the mind of the people that sons will get their father’s property results in the reluctance in the people to provide their property to females.

2. LACK OF LEGAL AWARENESS

Rural women lack the power to demand and protect their land rights. Because women have less access to education and frequently have low functional literacy levels, they are typically uninformed of their rights. They lack the knowledge, paperwork, and opportunities to participate in land governance, which perpetuates and maintains gender disparities in land access.

3. LACK OF FINANCIAL CONTROL

Women also lack financial support and authority, making it harder for women to participate in property ownership. Even if she works and brings money home, the money is still in the control of the family's male members like her husband, brother, and father-in-law.  As a result, she lacks financial autonomy.

BEFORE THE CODIFICATION OF PROPERTY LAWS

Women were usually controlled by their husbands or father or any other male member of the family because of this, women were unable to possess the land in their own right or inherit it like their male counterparts. Only the Male members of the families were considered as the lineage of the property.

Earlier, the law of succession was based on customs of different schools of thought such as Mitakashara and Dhayabhaga.

The Mitakshara school of thought, which predominated in India in regions other than Bengal and Assam, recognized property rights in joint families only for male lineages going back three generations. The son acquired the right to the ancestral property at birth and was thus a co-parcener from that point forward. In Dhayabhaga, the father had the right and full control over the property until his death after that, the property will be divided equally among the sons, not the daughters.

Due to their inability to own or own any property of their own, women were left penniless in the event that their husbands or fathers passed away. They could only use it for maintenance. Women, however, were the owners of the movables, such as ornaments and decorations, and they also had the right to inherit any property given to them as a token of love by their husbands, parents, etc. With the exception of emergencies, the husband had no right to the wife's possessions. It was known as Stri dhan.

STRIDHAN VS DOWRY[3]

The words ‘dowry’ and ‘stridhan’ are two different things but sometimes, people presumed that they mean the same. Dowry refers to any property or gift given to the groom’s family or agreed to be given before the marriage, at the time of marriage, or after the marriage. Whereas, according to the Smritikars, "Stridhan" refers to the assets a woman receives as gifts from her family, most of which are items of movable property. Stridhan is rumored to also include any presents given to her by her wedding guests during the bridal procession and the wedding ceremony. The main element of difference that is prevalent between the stridhan and the dowry is demand, undue influence, or coercion. Stridhan is the voluntarily given gift to the bride by her family.

In the case of ‘Bhagwandeen Doobey V. Maya Baee, (1897) 11 Moo. I. A 487[4]’, the privy council held that the gifts received by her husband will not be included in the stri dhan. Instead, those properties will be categorized as ‘women’s estate.’

In the case of ‘Kasserbai V. Hunsraj (1906) 8 BOMLR 446’[5], the high court of Bombay held that the property which is received by a woman from other female members of the family will come under the umbrella of stri dhan.

The Allahabad High Court in the case of ‘Debi Mangal Prasad Singh V. Mahadeo Prasad Singh (1912) ILR 34 ALL 234’[6], clearly observed that in the schools of ‘Mitakshara’ and ‘Dayabhaga’ that any portion from the property that woman receives will not be treated as stridhan but will be considered as ‘women’s estate.’ The shared property earned by partition is now included as an absolute property, or Stridhan, according to the 1956 Hindu Succession Act. Being the owner of absolute property, a woman has full rights to alienate it, meaning she is free to do whatever she wants with the item in question, including gift, sell, lease, swap, and mortgage.

Also, the supreme court in the case of ‘Pratibha Rani V. Suraj Kumar & Anr (1985) AIR 628’,[7] held that according to the Mitakshara and Dayabhaga schools, the stridhan will consist of the following items

1. Gifts provided prior to the wedding fire.
2. presents given during the bridal procession
3. gifts that her father- or mother-in-law gave her on the occasion of her marriage as a token of their affection.
4. Gifts created by the women’s mothers, fathers, and brothers.

When a wife entrusts her Stridhan property to her husband or any other family member with dominion over that property, and the husband or such other family member dishonestly misappropriates or converts that property to his or their use, or wilfully permits another person to do so, he or they commit a criminal breach of trust, the Supreme Court had noted in ‘Smt. Rashmi Kumar vs. Mahesh Kumar Bhada, JT 1996 11 SC 175[8].’

Women who are victims of domestic violence have the right to their Stridhan under Section 12 of the Protection of Women from Domestic Violence Act, 2005.[9] The provision can readily be used to recoup such Stridhan. In accordance with Section 18(ii)[10] of the Act, a woman has the right to own the Stridhan in the form of jewelry, clothing, and other necessary items. The term "economic abuse" is also defined by the Act. It entails the loss of all or any economic or financial resources, payable at the court's discretion or otherwise, to which the lady is entitled under all currently in force customary laws.

Also, the Punjab and Haryana court in the case of ‘Bhai sher Jang Singh V. smt Virinder kaur 1979 Crilj 493[11]’ held that if all the property, ornaments, and jewelry are given by the bride’s family at the time of marriage are claimed then, they have to return all the items. If the groom’s family refused to return the goods then, they have to face severe consequences. The court determined that Bhai Sher Jang Singh and his family broke the Indian Penal Code's Section 406[12] by defrauding Virinder Kaur of her Stridhan, which she had given to her husband for safe keeping but who had dishonestly looted it.

MEHR[13]

Marriage is considered to be more of a legal contract between the parties. Now, one fundamental element of this contract is ‘Mehr’. Mehr is the amount of money or any property or gifts or jewelry which the husband has to give to their wife. The amount of Mehr has not been specified; it varies but it can be decided mutually among the parties.

A talaq will not be considered valid if the Mehr is not paid which is like a consideration. If the husband refused to pay the Mehr then, it is the right of the woman that she can even sue her husband on the ground of not paying off the Mehr.

The Supreme Court noted in the case of ‘Abdul Kadir v. Salima (1886) ILR 8 ALL 149[14]’ that the marital contract is easily severable and that the husband's control over the ability to divorce and engage in polygamy restrains such rights through the Mehr mechanism. The marriage contract's key element is the wife's entitlement to her Mehr.

A woman can even rescind her right of getting mehr if she wants to out of love or affection.

CODIFICATION OF LAWS[15]

Women is a multi-tasking personality, who along with her work never fails to amaze us with her passion for taking up the responsibilities of daughter and mother at the same time with utmost love and affection. We can’t quantify her efforts and her love but the least we can do for her is to secure her terms in the future and make her feel equal in terms of property rights.

In terms of women's rights, the property has been a key source of controversy. Women's property rights have not received much attention in India. Instead, they have been ignored. The situation has gradually improved due to modernization and rising knowledge, and we can now discuss "equality" in this area more.

THE HINDU WOMEN RIGHT TO PROPERTY ACT, 1937[16]

This act was the result of the immense hard work of social reformers. By this act, the doctrine of the schools was altered and Hindu women were given rights over the property. This Act had a revolutionary impact on not just the law of coparceners but also the laws of alienation, inheritance, partition, and adoption. In this act, they were given an equal right in the property as a son but denied the right for becoming co-parceners. As a result, widows possessed little inheritance in their late husband's assets and may ask for a partition.

The Hindu Women's Right to Property Act of 1937 was designed to increase the property rights of all Hindu women generally, but it was only focused on enhancing the rights of widows, not women generally. The status of a daughter's right to inherit was similarly untouched by the cited Act of Legislature. Due to the harsh criticism of the Hindu Women's Right to Property Act, 1937[17], the Parliament resolved to create a better law to safeguard women's property rights and passed the Hindu Succession Act, 1956.[18]

HINDU SUCCESSION ACT, 1956 [19]

This Act was the first legislation to formally codify the Hindus' property devolution and succession and the question of equality in the property was getting addressed to some extent. According to this act, women were given an equal share in the intestate property of men. The object of the act lays down “An Act to amend and codify the law relating to intestate succession among Hindus”. As per section 3(f)[20] of the act, the heir will include females along with males to inherit the property in the case of intestate succession.

However, Section 6[21] of the Act left the devolution of the coparcenary property up to customary Hindu law, not the statute. The interest of the male would transfer to the female survived by him by succession (after death) and not survivorship (birthright). Because of this, the women had no coparcenary rights in the Joint Property. They have comparatively less share in the property as compared to men as they don’t get the share in the property of Fathers/Husband by birth, unlike men.

In accordance with section 14[22] of this act, women were given the right to deal with the property received by her in absolute ownership as she likes. The property includes both movable and immovable property.

HINDU SUCCESSION (AMENDMENT) ACT, 2005[23]

The amendment was made to sort out the prevailing discrimination by the previous act of 1956. It is not appropriate to say that no rights were given to women but the rights given were not in equity with males. This amendment was the result of the 174^th law commission report. The amendments made in the act were-

1. The amendment was made in section 6 of the act of 1956 and clause (1) was added which includes a female member of the lineage as the coparceners in the joint family and gives them the right in the property by birth equal to that of male.
2. Females were allowed to own such property under clause (2) of the Act, and they were free to dispose of it any way they saw fit.
3. Section 23 of the 1956 Act[24], which forbade female heirs from requesting partition before the male heirs demanded partition, was left out. Both married and unmarried daughters now have an equal right to request a property division following abolition.

Certain Females such as daughter’s daughters, daughter’s daughters, daughter’s son’s daughters, and son’s daughter’s daughters were added to class I heirs.
The current position is that women receive the same and equal portion of the joint property as male members through survivorship (by birth) and separate property through succession (after a male or female member's death).

APPLICABILITY OF LAWS

1. THE HINDU SUCCESSION ACT, 1956[25]

Section 2 [26]of the act talks about its applicability of the act. This act will apply to a person who is Hindu by religion which also includes Virashaiva, Lingayat, or a Brahmo, Prarthna, or Arya Samaj, follower. Further, any person who is a Buddhist, Sikh, or Jain by religion.

2. INDIAN SUCCESSION ACT, 1925[27]

The laws of succession for Christians and the Jewish community are set down in Sections 31 to 49. The Act's Sections 50 to 56 address intestate succession among Parsis.

3. MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 [28]

The non-testamentary succession laws for Muslims are governed by this Act. However, in circumstances when a Muslim has passed away and left behind a will or a "wasiyat," the Indian Succession Act, 1925[29], controls the subject for the states of West Bengal, as well as those of Mumbai and Madras jurisdiction.

4. SPECIAL MARRIAGE ACT, 1954[30]

It deals with the succession of Interfaith or Inter-religious marriages.

PROPERTY RIGHTS AS PER HINDU LAW[31]

DAUGHTERS

The daughters have equal rights in their father’s property as sons and the daughter also has the right to share in the property of her mother. If we look in the context of a coparcener, after the Hindu succession (amendment) act, they have an equal right to become a coparcener. The daughter also has to bear the same liability in the father’s property as the sons. The married daughter doesn’t have a right to seek maintenance or shelter in her parents’ home until and unless the married daughter is deserted, widowed, or divorced.

WIVES

A married woman will be the sole owner of the property whether the property is gifted or inherited or earned by her. Also, she has the right to gift the property to anyone she wishes. The married woman has a right to seek maintenance or shelter from her husband even if her husband is part of a joint family. In the case of the division of joint family property, the wife will also have the right to ask for her share as equal to what other family members are getting. She has the right to an equal share of her deceased husband's estate, together with her children and his mother.

MOTHERS

The mother is considered a class 1 heir by inheritance law and she is entitled to get maintenance from her children. Even, in the case of joint family property disputes, the widowed mother can get a share in the property to the share of her son. She has the full right to dispose of her property by sale, gift, or will as she may choose. If the mother dies intestate, then, the property will be distributed among the children equally.

PROPERTY RIGHTS AS PER MUSLIM LAW[32]

DAUGHTERS

The daughters have a right of inheritance but it is equal to one-half of the son’s share in their father’s property. She has complete control over her portion of the property and the freedom to manage it as she sees fit, both during her lifetime and after her death. The daughter can receive property as gifts from those whom she may inherit property, but his will doesn’t take away her right of inheritance. The daughter until she gets married, she has a full right to seek shelter in her parent’s home. After the iddat period, which is roughly three months, the maintenance costs for a divorced married daughter rest on her parents; however, if she has kids who can support her then they must do so.

WIVES

As with any other wife, Muslim wives also have the right to maintain if their right is violated by their husband, the wife can take action against him. She is fully entitled to have control over her personal property and goods. After divorce, it is the duty of the husband to make fair and reasonable provisions for her wife which also includes her maintenance. According to the contract provisions agreed upon at the time of the wedding, the wife has the right to Mehr. When there are no children, she has a one-fourth inheritance right; if there are children, she has a one-eighth inheritance right.

MOTHERS

If the mother is widowed or divorced then, she is entitled to receive maintenance from her children. The mother is entitled to receive 1/6^th share in the property of her deceased child and the property of the mother will be divided according to their Muslim personal law.

PROPERTY RIGHTS AS PER CHRISTIAN LAW[33]

DAUGHTERS

The daughters have equal rights on their father’s or mother’s property as their son. The unmarried daughter has a right to seek shelter on her parent’s property but the right nullifies after her marriage. Further, as soon as she reaches the age of majority, she enjoys full rights to her property. Her father is her natural guardian until this point.

WIVES
The wife is entitled to maintenance from her husband, and if he refuses to give it, she is entitled to file for divorce. When a spouse passes away, the wife is entitled to one-third of his estate, with the remaining two-thirds going to the children equally.

MOTHERS

According to Christian law, the mother doesn’t have any right to receive any maintenance from her children and she can take 1/4^th of the share in the children’s property if her child dies without any spouse or child.

CASE LAWS

1. VINEETA SHARMA V. RAKESH SHARMA (2020) 9 SCC 1[34]

The three-judge bench of justice Arun Mishra, Justice S Abdul Nageer, and Justice MR Shah, on August 11, 2020, passed a judgment in which it was held that the daughters would have an equal right in their father's property irrespective of whether their father is alive or not. Therefore, the Hindu Succession [amendment] act, 2005 will have a retrospective effect. This was done to bring gender egalitarianism and give daughters equal rights as their sons. Prior to the amendment in 2005, daughters were not given a share in their father's property, and the law was limited to only sons. The judgment quoted that "once a daughter, always a daughter ……. Son is a son till he is married". This judgment overruled the verdict of Prakash vs Phulvati and management vs TB Raju. Therefore today, if the father of the daughter is alive or not on September 9, 2005. She will have equal rights on the coparcener property.

2. V. TULASAMMA V. V SHESHA REDDY 1977 SCR (3) 261 [35]

Shesha Reddy's (respondent) brother was the spouse of Tulasamma (Appellant). After her husband passed away, the appellant brought a lawsuit for maintenance. Respondent and she reached a solution in which she would receive some properties to use as she sees fit, but not to own and dispose of. The same will be returned to the Respondent upon her death. The district Munsiff agreed with the respondent when he claimed that the said interest cannot be changed to an absolute one. Tulasamma appealed to the District Court, which determined that because she acquired this right through succession and not through any other means, she has an absolute interest in the subject property under Section 14 (1) and Clause (2) of the Hindu Succession Act. The same was contested in the High Court, which took the opposing stance that since she acquired the property through a compromise and a similar document before the HAS Act was passed, she lacked an absolute right to do so. Despite the compromise being in place, the Supreme Court ultimately ruled that she was the only owner of the aforementioned property under Section 14(1) of the Act and not 14(2).

3. GUMMALAPURA TAGGINA MALADA KOTTURUSWAMI V. SETRA VEERAVVA 1959 AIR 577 [36]

In this instance, the apex Court explained what "possessed by a female" in Section 14 (1) of the HAS, 1956 (2005). It was mentioned as a state that one may possess or have under one's control. The possession does not have to be tangible and real. Additionally, it doesn’t need to belong to the female. It ought to be a legal possession. It could be actual, implied or any other type of legal possession.

4. DANAMMA @ SUMAN SURPUR V. AMAR (2018) 3 SCC 343[37]

Two sisters attempted to claim a portion of the father's (Gurulingappa Savadi) land, but the brother rejected their claims. They were refused it on the grounds that they were married and had no claim to the father's property, as well as the fact that they were born before the HAS of 1956 came into effect. According to the Supreme Court, the Act's goal was to achieve gender parity in the distribution of property upon the passing of a Hindu Member. It was created to get rid of the stigma and discrimination surrounding the daughters. The girls have equal coparcenary rights by birth, which cannot be disputed, and hold the property in ownership on a level with the sons.

CONCLUSION

In today’s world, it is the need of an hour to have a gender-neutral environment but even nowadays even if the law recognizes equal rights for both men and women on the property, people still feel reluctant in naming their will in the name of their daughters due to the fact that she will get married. Lack of knowledge or awareness of recent developments in law also contributes to the lower rate of women’s participation in property ownership. Even, most of the time women don’t ask for their share in property just because she doesn’t want to create grudges between themselves and family members.

However, even after many such amendments, we are still lagging in providing equality and justice to women. We still cannot say that the struggle for equal rights, freedom, and justice has ended. But still, there is hope. We are not where we were meant to be but also not where we used to be. One day that bird said to have weak wings will soar…

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