Evolution of Property Rights of Hindu Women

In ancient India, the Hindus adhered to the Shastric or the traditional Hindu Law. The traditional Hindu law is one of the oldest personal laws in the world. It is the predecessor of modern statutory Hindu Laws, that we have today.

Before the enactment of the laws governing Hindus, the complex issues of the Hindu Society were regulated by Dharma, the Vedas, and other sources which were believed to be either of divine origin or were formulated by Acharyas and Rishis who were well versed in the study of religion and its various intricacies which were recognized as the law. It was strongly believed that morals and ethics when combined with self-imposed restrictions and conditions were expedient to regulate the society.[1]

 Hindu women’s legal right to inherit property has been restricted from time immemorial. In the ancient text of Manusmriti, Manu writes, “A woman is protected by her father in childhood, by her husband in youth and by her sons in old age; she is not fit for independence”.[2]   He also states, “A son, a wife and a slave do not have property rights and if they acquire any property by their own, then that property will belong to the male under whose protection they are living”[3].  Throughout history, restrictions on Hindu women’s property rights have changed, and the current laws governing these rights are more liberal than the Shastric Laws.

  1. Two Schools of Thought

Prior to the Hindu Succession Act, 1956, Shastric Laws and customary laws that governed the Hindus varied from region to region. As a result, there were different schools of thought. In the matters of succession Dayabhaga and Mitakshara are the most prominent ones.

Dayabhaga School of thought is prominent in Bengal, eastern India, and in the adjoining areas of Mayukha (Bombay), Konkan, and the western part of Gujarat. Marumakkattayam or Nambudri in Kerala also follows the Dayabhaga School of thought. Mitakshara School is prominent in other parts of India, with slight variations.[4]

Differences[5]

DayabhagaMitakshara
Both male and female members are co-parceners.Only male members are co-parceners i.e father and three lineal male descendants can be the co-parceners. Females developed into co-parcenary after the enactment of the Hindu Succession Act, 1956.
One acquires a co-parcenary only after the death of the father.Persons acquire co-parcenary by birth.
In case of death of one co-parcener his share is given to his lawful heirs; i.e his son, daughter, wife, etcProperty is dissolved on the doctrine of survivorship. In case of the death of one co-parcener, his share is shared among the other co-parceners.

 Prior to, 1937 there was no legislation to deal specifically with Hindu Woman’s right to property. The disputes were settled in accordance with the customary laws. In 1937, Hindu Women’s Right to Property Act came into force. This Act deals with the rights of Hindu widows, on the death of the husband, if he dies intestate. In such cases, the widow is entitled to a limited share of the property as that of a son.[6]

Under this Act, a Hindu man’s widow, his widowed daughter- in -law and widowed granddaughter-in-law are entitled to inherit to his estate, not only in default of but along with, his male co-parceners.[7]

Under limited estate rights, the women do not get any rights to alienate the property by sale, will, gift, etc. However, the women had full rights over their Streedhan Property, including the right to alienation by sale and will.  Woman’s Streedhana Property includes ornaments, apparel, gift received, property acquired out of her savings, etc[8]

The concept of a limited estate as propagated by the Hindu Women’s Right to Property Act, 1937 was abolished with the introduction of the Hindu Succession Act, 1956.

This Act deals with property rights and inheritance. It applies,

(a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina, or Sikh by religion, and

(c) to any other person who is not a Muslim, Christian, Parsi, or Jew by religion, unless it is proved that such person would not be governed by the Hindu Law.[9]

Section 6 of HSA deals with, ‘devolution of interest in coparcenary property.  It states that when a male Hindu dies after the commencement of the HSA Act, 1956, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by the principle of survivorship upon the surviving members of the coparcenary and not as per this Act.[10]

Provided that if the deceased had left him surviving a female relative specified in class 1 of the Schedule or a male relative specified in that class who claims through that female relative, the Interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship.

In this background, Sec 6 of the HSA 1956 must be read along with Sec 8 of the HSA Act regarding devolution of property of a male Hindu dying intestate as per the Schedule of the heirs.

Eg 1. A, a male Hindu, and his brother B are members of a coparcenary, A dies issueless, B gets the whole share of the coparcenary by survivorship.

Eg 2. A, a Hindu male dies intestate leaving a widow and a father. The widow will take the whole to the exclusion of the father, (as she is Class 1 heir, while the father is Class 2 heir).

Eg 3. A, Hindu dies intestate leaving a mother and father. Mother being an heir of class 1 will take the whole to the exclusion of father as the father is a class 2 heir, however, mother and widow (refer eg 2) are class 1 heir.

Section 14 of the Hindu Succession Act,1956 mentions that “Property of a Hindu Female to be her Absolute Property”.

 Section 14(1) asserts that any property, movable or immovable held by a Hindu female

  1. either by inheritance or
  2. devise or
  3.  partition or
  4.  in lieu of maintenance or
  5. arrears of maintenance or
  6.  by gift from a person relative or not or
  7.  before, at, or after the marriage or
  8. by her own skill or exertion, or
  9.  by purchase or by prescription, or
  10. streedhan

immediately before the commencement of this Act shall be held by her in full ownership, and not in a limited manner.[11]

In the case of Pratibha Rani Vs. Suraj Kumar and Anr[12].  the Hon’ble Supreme Court enlisted the following to constitute Streedhan :

a)     Gifts made before the nuptial fire,

b)     Gifts made at the bridal procession, i.e. while the bride is being led from her residence of her parents to that of her husband.,

c)     Gifts made in token of love, that is, those made by her father-in-law and mother-in-law and those made at the time of the bride making obeisance at the feet of elders,

d)     Gifts made by the father of the bride,

e)     Gifts made by the mother of the bride,

f)      Gifts made by the brother of the bride.

Section 14(2) asserts that any property acquired by way Hindu Female as 

  1. gift or
  2. under a will or
  3. any other instrument or
  4. under a decree or order of a civil Court or
  5. under an award where the terms of the gift, will, or other instrument are prescribed or
  6.  or award that prescribes a restricted estate in such property.[13]
  • State Amendments

Succession has always been a subject matter in the concurrent list of the constitution, both the Union and State are competent to bring about legislative changes in the succession laws. Five States of India that brought out legislative changes to the succession laws are:

  1.  Kerla, The Joint Hindu Family System (Abolition) Act.
  2. Andhra Pradesh, The Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
  3. Tamil Nadu, The Hindu Succession (Tamil Nadu Amendment) Act, 1989.
  4. Karnataka, The Hindu Succession (Karnataka Amendment) Act, 1994.
  5. Maharashtra, The Hindu Succession (Maharashtra Amendment) Act, 1994.

An empirical study, on the five states that witnessed law reform before the 2005 amendment, found that the reform positively impacted women’s education, labour force participation, and their daughter’s education.[14]

The Constitution of India enshrines the principle of equality and provides that every person is entitled to equality before the law and equal protection of the laws and therefore prohibits discrimination based on caste, creed, and sex. But gender disparity manifests itself in various forms, and particularly concerning effective rights in the property to women.

The idea of making a woman a coparcener was suggested as early as 1945, by the Hindu Law Committee constituted under the chairmanship of BN Rau. Again in 1956, before the enactment of the Hindu Succession Act while the bill was being debated upon in the house an amendment was suggested to make a daughter and her children members of the Hindu coparcenary in the same way as that of a son or his children. But this progressive idea was finally rejected and the Mitakshara Joint family was retained.[15]

In 2005, an amendment was made to Section 6 of the HSA Act to confer legal rights and liabilities upon daughters in the ancestral property by birth in a Hindu Undivided Family (‘HUF’), equivalent to that of a son.[16] The Amended Act came into force on September 9, 2005.

The 2005 Amendment to Sec 6 the HSA Act held that,

 In a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, –

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.

Eg.  Assume that F (father) has 2 children S (son) D (daughter), if F dies intestate then the coparcenary property shall be divided equally among both S and D and they will have the same rights and liabilities over the coparcenary property.

(2) Any property to which a female Hindu becomes entitled by virtue 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 testamentary disposition.

Explanation: Share of property accrued by a female as coparcener as well as by her exertion as per sec 6 can be disposed off by will or other testamentary dispositions.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Eg. F’s (Father) property devolves to Son and Daughter, Children of daughter and son, and Grandchildren of Son and daughter according to the amended Sec 6 of the Act.

(5) Nothing contained in this section shall apply to a partition(either by the process of registration of partition deed under the Registration Act, 1908 or by a decree of court), which has been affected before the 20th day of December 2004.

Eg: F (father) partitioned the coparcenary property among his two sons, A and B (coparceners), but no share of the property is given to his daughter, C. The partition was executed on 18 December 2004 and the deed of partition was duly registered under the Registration Act, 1908, on the same date then, the 2005 amendment to Section 6 shall not apply to this partition i.e C cannot claim for a share in the property, as per the amendment.

The 2005 amendment has benefitted the status of Hindu women in society if not completely changed it. The study finds that the 2005 amendment has led to greater access to women-owned physical and human capital assets and that it has enhanced the probability of daughters inheriting property.[17]

  • Cauldron of Confusions Related to Hindu Succession Act, 1956 (as amended in 2005)

Amended section 6 of HSA conferred full coparcenary rights to daughters as same as that of sons. The amendment act was enacted on 9 September 2005. But the section 6(1)(a) of the Act that conferred coparcenary rights on daughters by birth arose questions. Queries regarding the prospective or retrospective effect of the amendment came up before a few high courts. One set of arguments was that in the absence of express provision or implied intention, an amendment dealing with a substantive right is prospective and does not affect the vested rights i.e if a coparcener had died previously to the commencement of the Amendment Act then succession opens on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystallized and that the amendment cannot re-open the partition. The counter-argument was that the amendment being a piece of social legislation to remove discrimination against women in the light of the 174th Report of the Law Commission on “Property Rights of Women: Proposed Reforms under the Hindu Law”, the amendment should be read as being retrospective.[18]

In the case of Prakash and Ors. vs. Phulavati and Ors[19]., the Hon’ble Supreme Court opined that “The rights of coparcener under amendment act 2005 apply to living daughters of living coparceners as on September 9, 2005, irrespective of the birth date of daughters.” This simply means that if the father dies before the said date September 9, 2005, the living daughter of the coparcener would have no right in coparcenary property. So Hon’ble Supreme Court had set a clear line for the availability of rights under the 2005 amendment.[20]

Danamma Vs. Amar[21] case was rather peculiar. The father (male coparcener) in this case passed away in 2001 and thereafter one of the sons initiated proceedings for partition of joint family property in the year 2002. The son claimed that the daughters were not entitled to a share in the joint family as the father had passed away before September 2005.

The Trial Court and the High Court accepted the contention and concluded that the daughters were not entitled to a share in the joint family property. This conclusion aligned with Phulavati judgment. But when the decision was challenged before the Hon’ble Supreme Court, it applied the principle that partition is not complete with the passing of a preliminary decree and attains finality only with the passing of the final decree. The Hon’ble Supreme Court held that although the suit was filed in the year 2002, the preliminary decree was passed in the year 2007 and therefore, the daughters were entitled to the benefit of the Amended Act (2005).[22]

The legal scholars found both these judgments in the Phulavati and Danamma cases to be debatable and opposite. It was then difficult to interpret cases as the judgments created a great deal of confusions.

 These confusions were resolved in the case Vineeta Sharma v. Rakesh Sharma & Others[23], where similar questions were raised before the Hon’ble Supreme Court, and considering the contradicting view expressed by the Hon’ble Supreme Court the issue, was referred to a larger bench constituting three judges of the Hon’ble Supreme Court.

The Hon’ble Supreme Court articulated that the amended section 6 of the HSA be interpreted neither as retrospective nor prospective but as to be retroactive in nature.

Explaining the concepts of retrospective and retroactive, the Hon’ble Supreme Court held that the operation of a retroactive statute operates based on a characteristic or event which happened in the past or which had been drawn from an antecedent event. The Court further opined that Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by the virtue of birth and since the right is given by birth, that is an antecedent event, and provisions operate on and from the date of the Amendment Act, making it retroactive. And thus, specified that the date of the death of the father is irrelevant for the daughters to claim partition.

Conclusion

The progress of any society depends on its ability to protect and promote the rights and interests of its women. In contrast to the statement, Hindu society has always been patriarchal in nature, which promotes the interests of the male heirs. This social scenario in course of time has begun to shift. Slowly yet gradually women are rising to stand in equal stead with men, women are being endowed with the same rights as men. The right to equality irrespective of gender is enshrined in our Constitution. But if we talk about the Hindu Succession Act, 1956, no rights were given to the female heirs but the Amended Act of 2005, speaks volumes of gender equality and inheritance. The main goal of this Act is to ensure that both, male and female heirs, are entitled to the title of the coparceners in the family’s estate. Hon’ble Supreme Court reaffirmed as it upheld gender equality in matters of Hindu succession.

To conclude it can be best quoted, “Gender equality is a human fight, not a female fight.”[24]


[1] Satyajeet A. Desai, “Hindu succession & inheritance: An analysis of some provisions”, The Daily Guardian, Published June 30, 2020, available at https://thedailyguardian.com/hindu-succession-inheritance-an-analysis-of-some-provisions/, (last visited May 8, 2021)

[2] George Buhler, Manusmriti, The Laws of Manu- Part I, available at https://www.hinduwebsite.com/sacredscripts/hinduism/dharma/manusmriti_1.asp, (last visited May 8,2021)

[3] Verse 299, Manusmriti Chapter 8, available at https://www.bharattemples.com/manu-smriti-chapter-8/, (last visited May 9,2021)

[4] Shruti Pandey, “Property Rights of Indian Women”, available at https://www.womenslinkworldwide.org/en/files/1290/property-rights-of-indian-women.pdf, (last visited May 8,2021)

[5] Manpreet Kaur,” Differences Between Mitakshara and Dayabhaga Succession”, February 8,2021, available at https://lawcorner.in/difference-between-mitakshara-and-dayabhaga-succession/, (last visited May 9.2021)

[6] The Hindu Women’s Property Rights Act,1937, available at https://indiankanoon.org/doc/80896406/, (last visited May 9,2021)

[7] Ayushi Singhal, “The Right to Property of Hindu Women”, March 19, 2015, formatted on February 20,2019, available at https://www.lawctopus.com/academike/right-property-hindu-women/#_edn7, (last visited May 9, 2021)

[8] Ashish Gupta, “Property Rights Of Women”, Published in Economic Times|Wealth, Aug 26,2006, available at https://economictimes.indiatimes.com/bangalore/property-rights-of-women/articleshow/1910002.cms?from=mdr#:~:text=Hindu%20Women’s%20Rights%20to%20Property,limited%20rights%20to%20the%20property., (last visited May 9,2021)

[9] Section 2, Hindu Succession Act, 1956, available at http://www.bareactslive.com/ACA/ACT039.HTM#2, (last visited May 9,2021)

[10] Shelly Saluja and Soumya Saxena, Changes brought in the position of women specifically in Sec 6 of the HSA, 1956 after the 2005 Amendment, available at http://www.legalserviceindia.com/articles/hsa_w.htm#:~:text=2005%20Amendment(431)-,Changes%20brought%20in%20the%20position%20of%20women%20specifically%20in%20Sec,after%20the%202005%20Amendment(431)&text=The%20Constitution%20of%20India%20provides,of%20caste%2C%20creed%20and%20sex., (last visitedMay 11,2021)

[11] Section 14(1), Hindu Succession Act, 1956, available at http://www.bareactslive.com/ACA/ACT039.HTM#14, (last visited May 9,2021)

[12] Prathibha Rani v. Suraj Kumar and Anr. 1985 AIR  62  1985 SCR  (3) 191 1985 SCC  (2) 370

[13] Section 14(2), Hindu Succession Act, 1956, available at http://www.bareactslive.com/ACA/ACT039.HTM#14, (last visited may 9, 2021)

[14] Published on March 21, 2015, Rahul Sapkal (Erasmus University Rotterdam (EUR) – Rotterdam Institute of Law and Economics; University of Hamburg – Institute of Law and Economics), “From Mother to Daughter: Do Equal Inheritance Property Laws Reform Improve Female Labour Supply, Educational Attainments in India?”, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2580827, last visited May 18,2020

[15] Chitra Sinha, Rhetoric, Reason and Representation: Four Narratives in the Hindu Code, available at https://www.diva-portal.org/smash/get/diva2:874167/FULLTEXT02.pdf, (last visited May 11,2021)

[16] Manini Menon, Court Clarifies Application of S.6 of Hindu Succession Act, 1956, Supreme Court Observer, Published on August 12, 2020, available at https://www.scobserver.in/the-desk/court-clarifies-application-of-s-6-of-hindu-succession-act-1956, (last visited May 12, 2021)

[17] Klaus Deninger, Aparajita Goyal, Hari Nagarjan, “nheritance Law Reform and Women’s Access to Capital: Evidence from India’s Hindu Succession Act”, World Bank Policy Research Working Paper No.5338, Published on April 20,2016, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1625154 ,(last visited May 12,2021)

[18] Tejaswi Sinha, Amendment-in-Section 6 of Hindu Succession Act, 1956-Cauldron of confusion, Lawlisto, Published on October 24,2019, available at https://lawsisto.com/legalnewsread/MzA2OQ==/Amendment-in-Section-6-of-Hindu-Succession-Act-1956-Cauldron-of-confusion, (last visited May 12, 2021)

[19] Prakash and Ors. vs. Phulavati and Ors, AIR 2016 SC 769

[20] Jyotsana Uplavdya, Scope of Section 6 under Hindu Succession Act, available at https://www.latestlaws.com/wp-content/uploads/2018/09/Scope-of-Section-6-under-Hindu-Succession-Act-By-Jyotsana-Uplavdiya.pdf, (last visited May 12,2021)

[21] Danamma @Suman Surpur V Amar Singh, (2018)3SCC 343.

[22] Dhyan Chinnappa, Columns, “Continuance of confusion: Section 6 of the Hindu Succession Act”, Bar and Bench, Published on March 26,2018, available at https://www.barandbench.com/columns/confusion-section-6-hindu-succession-act, (last visited May 12,2021)

[23] Vineeta Sharma v. Rakesh Sharma, (2019) 6 scc 162 : (2019) 3 scc (civ) 171

[24] Quote by Frieda Pinot.

Author: Apeksha GM from M.S. Ramaiah College of Law.

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