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Amendment Of The Hindu Secession Act: An Overview Of Property Rights And Status Of Women In India

Women’s Property Rights in India

Property rights for women in India have evolved after a lot of a continuing struggle between progressive factors and status quoist. Property rights of women all around the globe and especially in India have been very inequitable and prejudiced. Host to various faiths, India has struggled to enforce a standardized civil code. Each religious culture therefore continues to be governed by its respective personal laws in multiple matters. As a result, no uniform body of property rights exist in the whole of India.

The Hindu law school of Mitakashara acknowledges a distinction between inherited and self-acquired lands. It also recognizes the name coparcenary of an individual. A coparcenary is a civil entity. It consists of three generations of male family heirs. Each male member at the time of birth, within three generations, becomes a coparcenary member. This implies that no individual's share of the ancestral property can be calculated. Earlier, under the prior Hindu Law, Streedhan was the only property that was granted to a widow and it was her absolute right.

Until 1937, Muslims in India were governed by the customary law, which was very unfair towards women. After the Shariyat Act of 1937, Muslims in India came to be governed by Muslim personal law in their personal affairs, including property rights, as it rebuilt personal law instead of custom. With the passage of time, new Islamic principles were developed. It created both men and women as heirs to property and gave women half the share of the land.

The property rights for Zoroastrian religion, have been just per se but again with gender biases like if a widow of a predeceased son died without raising a family, the widow would get no rights in property. Christian women’s share in property is guided by Indian Succession Act 1925. If the Husband died, the wife would get one third of the share while giving two third to the children. i

Amendment of the Hindu Succession Act

The Supreme Court has recently ruled that daughters will have an equal right in the property irrespective of the fact that the father was alive at the time of amendment or not. This three judgement bench was headed by Justice Arun Mishra where he held that no daughter should be deprived of her right to equality and should get an equal share under section 6 of the Act. ‘Daughter is always a loving daughter for the rest of their life. A son is a son till he is married. The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not.’ ii

In an undivided property, the one who gets equally is known as a coparcener. This landmark judgement held that that these rights are available to daughters of alive coparceners, irrespective of the time when they were born and as of on 9 September 2005.iii The amendment made it clear that the novel rights granted by the judiciary, would not give the option to re-access the alienation of ancestral by pre-existing coparceners.

The centre also declared that coparcenary was birth as well as a legal right of all daughters. This judgement was successful in putting the last nail on the male supremacy of Ancestral Hindu Property. The discriminatory practise was rectified by the supreme court and gave way to equality of sexes by way of promoting India’s modern and progressive outlook. iv
  1. How is this Different from the 2005 Amendment?
    The Hindu Succession Act of 1956 was a pivotal reform since it dealt with the property rights, which can be said to be the main idea behind equality and gender empowerment. Initially, the indigenous draft attempted to do away with coparcenary right but this decision was vehemently opposed during the parliamentary session.

    The act that was amended in 2005, gave daughters the right equally in their ancestral property but it did not have a retrospective effect and coparcenary aspect is a birth right. Furthermore, the daughters could have their share of assets only if the father was alive at the time of the amendment. The supreme court held in 2018 that a daughter would be a coparcener since birth but she will also have to share equal liabilities.
     
  2. Shortcomings of the Amendment
    Although salubrious results were obtained after the amendment, here is a critical analysis of the Hindu Succession Act:
    The amendment did not completely fulfil its role. The amendment retains article 15 that becomes a despicable flaw as it blemishes the issue of equality between genders and empowerment of women. This amendment looks at women not as individual beings but as a dependent of a man i.e either as a daughter of a father, wife of a husband etc. This way, it compromises on a woman’s self- identity and individuality.

    The above mentioned amendment excluded daughters-in-law, sisters-in-law etc and throws light only on daughters per se.

    This judgement was a step closer to achieving equality but, there are various lacune and its implementation has not been fully plausible so it has led to chaos.
     
  3. How does property right abuse affect women?
    Some consequences on property right abuses on women in India:
    Women are treated as dependents of their male counterparts. Usually, women do not get their share equally in property which makes them to struggle financially. Since women are dependent on the male households for getting any right in property, it makes them a weaker subject and often they are looked down upon. The priority is always given to sons and women have to face the brunt of the patriarchal society by facing discrimination and household violence.

Why are property rights important for women?
Property rights give women an increased bargaining power in society. They are considered self-sufficient as they get economic supremacy. Property rights confer upon them the required social protection and their views are heard both inside and outside their households. Children take care of parents, if parents retain control of their productive assets and enjoy property rights.

Positive and equal property rights give women the essential economy whether they live with their parents or with their husbands. If they do not have access to property rights, they rely fully on their male counterparts and their household. Their other activities remain invisible and unaddressed and unrecognized.

Why do Women have to always ‘Fight’ for their rights?

‘You can tell the condition of the nation by looking at the status of its women’ -Jawaharlal Nehru.vi
The position of women in India is weak. The status of women in general is considered to be at a subordinate juncture when compared to men. The equality in property rights have been made retrospective now after so many amendments. The evils like dowry which have prevailed in the Indian culture since ancient times, are still prevalent.

Men are considered capable of running a household but when women are considered, a second thought pops up. Men get their lion’s share in the ancestral property but when women claim these rights, they have to fight long court battles. Are women not humans? Because, these are very well human rights guaranteed to every individual.

The Indian societies consider that a boy is a boon to the society and his birth is celebrated and idolised. Whereas women are seen as a liability and their lives are shaped by the centuries-old traditions. Men are seen as assets and independent individuals, capable of carrying forward the family line and efficient enough to be the sole bread earner. Women are distressed as a liability who are believed to be dependent on men, emotionally and economically.

This happens because the system of dowry is still present though in a dormant form which makes women a burden on their families and that they ultimately go to their in-laws’ place. Due to these reasons, they are often snatched away of their right to property.

While in the educated urban classes, women’s conditions have improved tremendously but the patriarchal norms have their tentacles deeply rooted. Although they are given an opportunity to rise but are usually suppressed because of their household obligations. There is a need to correct the very basic foundation as works related to the household chores are seen as feminine. Raising up children and managing the family are all a woman’s work hence she has to sacrifice her earning career and revert to the four walls of the house.

In a democratic society, equal right and opportunities are very essential. Women in many fields have been successful as much as their male peers but it is time to recognize their work and give them equal opportunities. Demarcating the jobs according to any gender is not a solution but it is time to see both kins of society (male and female) to work together towards achieving equality.

Women have a tougher role to play as they have to break the traditional chains that bound them to a few areas and they have to take a soar high up in the sky to blossom and claim their rights. One ‘fights’ for what has been snatched away from them so this should ring a bell in the ears of society that women should be regarded as equal claimants, both in life and society. There is a long journey ahead which lies till women’s rights are fully respected and recognized that they play a vital role in the progress of a nation.

Conclusion
The amendment in the Hindu Succession act has been a milestone as women are too given an EQUAL share of the property irrespective of the time of her birth or date of amendment. She will be an equal coparcener both in the property and liability that will come along with it.

There is a need for constant effort to end inequality. The 1958 amendment in the Hindu Secession act held women’s rights are equal to men. Laws like Marumakkattayam and Aliyasantana are a few other progressive laws. Although numerous such laws are present but still discrimination between sexes is a serious question that haunts the Indian society.

Through the 174th report of the Law Commission, efforts were made to finish the old age custom of keeping women aloof from property inheritance. It stated The exclusion of daughters from participating in coparcenary property ownership merely by reason of sex is unjust. It demanded that there is a severe need to see women as equal parties in social, economic and political sphere.

Proper implementation is required for the promulgation of the legislative actions. There is also a need to modernise the concept of Hinduism so that women feel empowered and stronger. This can be achieved by creating a general awareness about their rights from the grass root level.

Hinduism can boast to have the oldest code in the world but age bound codes of law should not dictate the status of a woman in the name of religion, especially in the 21st century. It should however redefine the property rights and upgrade the status of women as property owners because the hurdle lies in achieving equality between genders. viii

End-Notes:
  1. Shruti Pandey, ‘Property Rights of women’ (women’s link world) <Microsoft Word - Women's Property Rights in India final Shruti Pandey.doc (womenslinkworldwide.org
  2. Legal correspondent, ‘Daughters have equal birth right to inherit property’ (The Hindu, 11 August 2020) https://www.thehindu.com/news/national/daughters-have-equal-coparcenary-rights-in-joint-hindu-family-property-supreme-court/article32325891.ece
  3. Kanu Sarda, ‘A daughter is a daughter throughout her life’ (The Indian Express, 11 August 2020) <'A daughter is a daughter throughout her life': SC rules in favour of women's equal property rights- The New Indian Express>
  4. Prabha Sridevan, For Gender Equality in Ancestral Property, the Journey from 1956 Has Been a Long One, (The Wire, 14 August 2020)
  5. Property Rights of men and women’ (Pay check) < Property Rights Laws - Property Rights for Women in India - Paycheck.in>
  6. Women’s situation in India’ (Sarthak India) accessed on 13 January 2021
  7. P.Abishek & Gayathri.J, ‘A critical analysis of status of women in India’ International journal of pure and applied mathematics, vol120 no.5 2018, 4853-4874
    Debarati and Jaishankar, ‘Property Rights of Hindu Women; A feminist review of succession laws of ancient, medieval, and modern India’ Journal of Law and Religion, Vol. 24, No. 2 (2008-2009), pp. 663-687

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