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Since time immemorial, Hindu laws and customs have been devised to be heavily skewed to the benefit and favour of men. The institution of Hindu Joint Family conferred all major rights to the male members of the family. In matters of property, the discrimination was directly evident. Male members have a right to property since birth whereas female members had no such rights. They can simply seek maintenance from their family. No right or interest in property were given to women by Classical Hindu Laws. Such social customs and traditions have resulted in the inferior status and condition of women in the Indian society.
When India got independence, the framers of the Constitution were keen on improving the plight of women in Indian society. The Constitution guarantees to every person fundamental right to equality, freedom, religion, culture and education among others. In pursuance of furtherance of rights of women in family and matters of succession, the Hindu Succession Act, 1956, Act was enacted. However, this Act was able to achieve equality only to a limited extent. Moreover, the pre-Independence legislation of Hindu Women’s Right to Property Act,1937 has also been analysed as one of the first steps towards recognition of property rights of widows. This project also seeks to do a comparative study of the various laws that exist for succession of property as under Hindu Laws, Muslim laws, Parsi and Christian law for wife/widow. This paper in its due course shall also study all the reforms and changes that have taken place to better the status of women in matters of succession and inheritance in family law matters. The Hindu Succession Act, 1956 and subsequent amendments, that have taken place, concepts such as “Stridhan” have been studied for Hindu Laws. A comparative and a comprehensive study have been conducted by the researcher across different personal laws to study the status of wife/widow.
India has a long history of laws that are inherently discriminatory towards women. this discrimination increases many folds in the arena of personal laws pertaining to inheritance and succession. Many personal laws either Hindu law of succession or Parsi law of succession, only became egalitarian towards women post their respective amendments. This discrimination against women present in the laws of inheritance and succession is a violation of Article 14 of the constitution and also works as a hindrance in their social and economic development.
A similar thought was presented by 174th Law Commission regarding the discriminatory nature of succession laws. Therefore, the commission suggested an amendment to the Hindu Succession act of 1956 (hereinafter the Hindu Act). The amendment made the daughters a coparcener and made her equal to a son. In the case of Parsi succession laws, the discrimination was done away with the amendment of 1991 where the share distribution between both the genders was made equitable. There are also instances of sexual discrimination in property towards women in Christian Law. Lastly, the Muslim law of succession has its origins from Arabic nomadic tribal customs and Quran and prefers the patriarchal form of family. These laws have lost their relevance as the society is moving towards an egalitarian and nuclear structure of the family.
Since we have already discussed the constitutional and theoretical dimensions of women’s rights of succession. It is very important to understand what exactly the terms inheritance and succession mean. The Black’s law dictionary defines inheritance as “property received from an ancestor under laws of intestacy or a property that a person receives by bequest or devise”. Moreover, the term succession has been defined as “the acquisition of rights or property by inheritance under the laws of descent and distribution”. The term succession is further divided into two kinds
- Intestate Succession
- Testamentary Succession.
We shall be considering intestate succession for the scope of this paper. After a concise reading of the aforementioned definitions, it can be humbly concluded that inheritance inherently deals with the receiving of property irrespective of it being moveable or immovable and succession deals with acquiring of right and benefits from the inherited property.
The Chronology of The Property Rights of Hindu Widows
In the ancient period it was unanimously considered that a woman, a slave and a son had no right to hold the property by themselves. All the property the acquired belonged the male(karta) of the family under whose protection they lived. Women didn’t have any right of inheritance and the right to property was only with respect to her “Stridhan”. The etymology of “Stridhan” is Stri+Dhan, where Stri= Women and Dhana = property or money thus meaning property of women.
Before the advent of the two major schools of Hindu laws, the Mitakshara school of thought and Dayabhaga school of thought, there was a lot of ambiguity in the concept of “Stridhan”. The Mitakshara school was more prevalent in India and was more conservative and followed the principle of survivorship and property right for males from birth also known as coparcenary. The Dayabhaga school was prevalent in the eastern part of India, it was not as conservative as Mitakshara school of thought. Moreover, it didn’t follow the principle of survivorship and the property rights only came into being after the death of male head of the family. The aforementioned schools have defined “Stridhan” as the property a woman acquires as a bride.
The “Stridhan” can include:
- The property or gift given to her during the wedding procession.
- The property or gift given to her after the procession.
- 3.The property given to her by her in laws and husband as a gesture of love and welcome.
- The property given to her by her father, mother or brother.
The “Stridhan” also includes any property given to her by any strangers as well.
It is important to note that the Privy Council had a different view on the concept of “Stridhan”. In the case of Bhagwandeen v. Maya Baeef, wherein it was held that any property that a woman inherits from a male counterpart loses its nature of being “Stridhan” and converts to a Women’s estate giving her limited rights on the property.
The women mostly had an absolute right to the property acquired as “Stridhan”. It is important to note that women only had the right to the property after their marriage and that to in the form of “Stridhan”.It is important to note that as the time passed the compact of “Stridhan” was bifurcated into two part first ‘saudayika’ and ‘non sauydayika’, the former one includes all the property that the women had the right to alienate and had full ownership over it and the latter includes the property on which woman have a limited right and cannot alienate it without the permission of her man. The non-saudayika form was one of the earliest manifestation of women’s estate. Thus, it can be said that women and widows in the ancient period had only a right in the property in the form of “Stridhan” and not otherwise.
In the pre-Independence era, the condition of the widows was grim and they were considered an outcast after the death of their husbands. this prevalent situation was poles apart from the situation of women in the Early Vedic period, where they were kept equal to their male counterparts.
This draconian behaviour of the society made it necessary for the social reformers to bring the requisite change in the society’s perspective regarding widow.
Hence, in order to boost the condition of women a major and revolutionary legislation was brought into being by the legislature of the British India. It was known as ” Hindu Women’s Right to Property Act,1937″. This act was one of its kind as it challenged the archaic and patriarchal belief of the Hindu society that property should only belong to men and the women can only have the right over “Stridhan”. Now the widow had two sources of property for her maintenance one being the “Stridhan” and other being her interest in the property of her husband, dying intestate.
The Act under Section 3(1) clearly states that the share of the widow shall be the same to the share of the son of the person dying intestate. This provision challenges the practice survivorship where only coparceners had the right to enjoy the property. The section 3(2) of the Act states that not only the widow of the deceased dying intestate but also the widow of the predeceased son and widow of the predeceased son of a predeceased son were also entitled to the share of their respective husband’s property with a share that is equal to the share of their surviving son if any. This inherent right in the property also provided the widows to call for partition in the property just the sons had the rights as coparceners. It was the first legislation that rooted for women’s rights in the property. Being the first it had its own flaws and drawbacks. The section 3(3) of the Act states that the women had a limited right in the property of her husband also known as women’s estate. This means that she did not have the right to alienate the property she inherited after her husband’s death. She only had the right over the property during her lifetime and after her death the same shall devolve on to her heirs.
This provision of ‘Women’s estate’ presented a duality of thought first, who were anti-women’s estate and secondly who were pro-women’s estate. The former believed that since the concept of the Streedhan provided the absolute right of property to a widow then the provision limiting her right in the property of the husband is archaic and regressive. Latter believed that the provision of the limited estate was there to protect women and their property from alienation by the men they depend on for maintenance. However, even after this criticism this legislation gave more power to widows than before. Therefore, it can be said that this Act laid down the first stone towards recognition of widow’s right to property and also laid down the foundation do Hindu Successions Act,1956 where the lacuna of the legislation was addressed.
The Hindu law of succession was governed by two schools of thought Mitakshara school of Hindu law and Dayabhaga school of thought. inheritance under the Mitakshara school of thought only favours males and restricted the testamentary succession in order to stop the family head from alienating the property outside the family. Whereas, the Dayabhaga school of thought permitted females to be a part of the coparcenary.
It is very important to note that in most parts of India it is Mitakshara school that governs personal Hindu laws. However, due to several statutes that have been passed both pre independence and post-independence have brought about uniformity in the personal laws of succession among Hindus. Firstly, the act that was passed for the benefits of widows was Hindu Women’s Right to Property Act, 1937 where the widow of the intestate along with the widow of his son and grandson took equal share to that of a son. In absence of a son, they got absolute right on the entire property. In the year 1956 the Hindu Succession Act was passed that provided the women with certain rights that were alien to them because under the 1937 statute the women(widow) only got a lifetime interest in the property if the intestate also had a son. It was through section 14 of the 1956 act that women got an absolute interest in the property. The commencement of the 1956 act brought about the concept of notional partition that manifested the equal status of succession between a widow and a son of an intestate. The same was upheld in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum.
Moreover, the lacuna of the women’s estate that could be seen in the Hindu Women’s Rigjy to to property act,1937 was also addressed as section 14 of the HSA did away with the limited property rights and provided the women with an absolute right over the property, they inherited the same was upheld in the case of V. Tulasamma & Ors. versus v. Sesha Reddi. Lastly, the HSA also made the widow a Class I heir when it came to intestate succession.
The laws the govern the succession of property have in their due course tried to bring equality among the gender counterparts through various amendments from time to time. The property or succession rights given to women under various personal laws have given women a share in the property. However, the share provided to them is not equal to their male counterparts in many cases and the jurists of various personal laws states different reasons to support the practice.
Even the Law Commission of India in 2018 in its Consultation Paper on Reforms of Family Law has gone through various aspects of different personal laws and has explained the discrimination on the grounds of sex prevalent different personal laws. Moreover, it has gone on to appreciate various egalitarian positions upheld under the concerned laws.
Similarly, the researcher in the concerned chapter will be comparing the right of succession of women under various personal laws and will appreciate the most egalitarian personal law among them.
Right of succession of a wife: As per Hindu law of succession she receives equal share to that of son, daughter and mother (Class 1 heir). As per Sunni law, the wife is entitled to 1/8 in presence of lineal descendants and 1/4 in their absence. In Shia Law, wife is entitled to 1/8 in presence of son or son’s how lowsover and 1/4 in their absence. As per Christian law wife is entitled to 1/3 in presence of lineal descendants and rest 2/3 is given to the descendant. She receives 1/2 when only the kindred are present (Mother and Father included) and she receives the whole property in absence of mentioned heirs. In Parsi Law, wife is entitled to equal shares as per section 51 however as per section 54 of the act of 1925 the quantum changes to 1/3 in presence of widow of a pre deceased son. In absence of other heirs, she receives 1/2.
Now looking at the quantum of shares it very evident that the Muslim law is less egalitarian than other personal laws. The reason for the small quantum of share to a Muslim woman is the preference of agnate heirs. This is a practice of nomadic pre–Islam Arab tribes so that the major amount of property could be kept within the tribe. Even the Christian law is biased towards the wife as she receives 1/3 in presence of a lineal descendant, if there is just one lineal descendant then they should receive 1/2 and wife should get 1/2. The most egalitarian laws are the Hindu and Parsi law.
It can be humbly concluded, that the history of development in the realm of property rights of women or widows has seen drastic a drastic change and has moved to towards progression. In the early vedic period women were kept equal to their male counterparts. However, in the medival period the conditions of the women became grim. It was sincerely after 1937 legislation that the property rights of the widows was recognized for the first time in modern era. Further, these rights were manifested in the hindu successions act,1956 and addressed the lacuna of the previous legislation, it came as a revolution for the property rights of widow.
Despite there being constitutional mandates for equality in the Constitution, equality in the private sphere of the family affairs has largely remained unrealized for women. Across the several personal laws that exist, lack of control or autonomy in matters of property with regard to women is witnessed. Most amendments although have been brought about with honest intentions to bring about changes in the societies remain an eye-wash to the society. Most women are denied their due share in personal laws due to various extraneous reasons. However, it would be disregard to downplay the role of legislative amendments and judicial interpretations and activism in bringing about parity in personal laws for the two sexes.
It was through amendments and recommendation of Law Commission of India that made the laws more egalitarian. In the current times Muslim Law is less egalitarian than other laws. However, that was not always the case as Muslim law was among the first personal laws to provide women with a definitive share in the property. The quantum of share and the delay in amending its feature have made it less egalitarian. In comparison to all the personal laws Parsi and Hindu laws are most in favour of women and their right of succession. Irrespective of how egalitarian the laws are, none of them are completely egalitarian and have their own flaws and require an amendment to do away with the flaw.
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 Bhagwandeen v. Maya Baeef, (1867) 11 M.A.I. 487
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 Hindu Women’s Right to Property Act 1937 §3 (1)
 Hindu Women’s Right to Property Act 1937 §3 (2)
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 Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, (1978) 3 SCC 383
 V. Tulasamma & Ors. versus v. Sesha Reddi, 1977 SCR (3) 261
 Law Commission of India, Consultation Paper on Reform in Family Law (Government of India 2018).
 Id. ¶ 5.109
Author: Riya Parihar
Editor: Kanishka Vaish, Senior Editor, LexLife India