How have Law Reform initiatives in Hindu Law Strengthened Women Rights in
Succession & Inheritance over the past several decades? What more needs to be
The Constitution of India through its Article 15 aims to establish a societal
existence where every human is treated equally. However the plight of women has
always been at stake when gendered notions came into play. Subsequently the
constitution of India also aims at creation of the said societal existence of
equality and justice values through the legislative practices.
The present paper
focuses on the legislations or Law reform initiatives in the Hindu Law
that aimed at strengthening the position of women in the inheritance and
succession avenues of property and lineage. Historically, the uncodified
personal law was governed by the Manusmritis
which was later replaced by
the codified law of Hindu Succession Act 1956.
The legislations have come a long
way in affording an equitable right to the women who were seen as a dependent
gender. Today the sons and daughters are treated at par with each other in terms
of property inheritance which is a step forward from a society where daughters
were not even considered for carrying the lineage ahead.
The law reforms have
strengthened the rights of women in a way where they have become self dependent
to run the families own their own after the death of their husband. While the
establishment of a different approach from gender inequality to gender equality,
the law reforms have a substantive contribution but ultimately it is the
religious subscription that became a problem in the Indian Society.
laws being so internally attached to the religion were inherently difficult to
modify and more importantly applying the mandate of that modification on-ground.
The society believed that women should depend on her father during her childhood
and on her husband after her marriage and were never granted the rights to
manage the property.
However, the different prevailing conditions in the lives
of women necessitated for a more comprehensive act. For instance, a widow would
need some subsistence support after the death of her husband and an unmarried
daughter would require a support before her marriage.
The paper aims to discuss
the timeline changes that originated in the form of women movements and have now
come to a more holistic act governing the society. The paper also aims to touch
upon the gendered notions that existed and how they have now evolved with the
passage of time.
As the society keeps on developing, there is also a substantive
change that comes in the mindset of citizens hence warranting the need for
amendments. However there have been amendments in the past but the loopholes
still continue to exist. The paper also discusses the loopholes and possible
solutions to address those limitations in the act.
It would undoubtedly not be an overstatement to say that we have come a long way
in terms of women's rights in India. However at the same time it becomes
imperative to examine the roots from where the very concept of these rights
emerged. The Dharamshastras
- which also became a guiding force to
Britishers' understanding of the Hindu Law and holds a concrete position in
the construction of what we see today as the Hindu Succession Act.
and The Dayabhaga
School of thoughts governed the position
of succession laws in India. The Mitakshara on one hand distinguished between
the separate and joint family property where when the issue of women rights in
the property of her husband arises, it was only the 'separate property'
where the widow of the deceased husband could have any rights over the said
property but they were in essence limited.
The widow could have access to the
property only till her lifespan after which it was to be restored to the
original heirs of the deceased husband. However the limited character of
enjoying such property was also due to the absent alienation rights. On the
other hand, the Joint family Property could only be enjoyed by the male
descendants, known as Coparcenars
According to the Mitakshara system, the
women and daughters could not be the coparceners in the joint family property
and ultimately could not have access to the rights over that property. The other
prevailing system was the Dayabhaga System, where the property was only divided
at the time of death when it flows to the sons of the deceased. In the absence
of the male descendants, the widow could have rights over the property but not
extending to alienation.
However the daughters could also have rights over that
property but were given preference only after the widow. Both the systems of
succession and inheritance sought to provide the property rights to women on a
secondary preference only where the male descendants were missing; this
reflected the prevalent societal conditioning that thought of women as
ineligible to manage property and aimed at the continuance of dependency of
women on males for bread and butter.
However keeping aside the gender lens, it
was the subsistence need of that widow who lost her husband and could have
highly limited rights over the property of her deceased husband. This
necessitated the need for a more comprehensive framework that could provide
women with the rights over property, where agriculture land for instance was the
source of subsistence unlike today where there are immense job opportunities
with established quota for females.
Subsequently, with the increasing
participation of women at legislative fronts however very minimum, the Hindu
Women's Rights to Property Act 1937 was passed amidst strong opposition which
sought to provide widows with an equal share right over the property of her
husband as his sons and a maintenance authority of her husband's coparcenary
share till her death. It was seen as a constructive step in bringing about a
change in the societal functioning and afforded a share with respect to property
It was true that with the rolling in of this act the gender dependency
was reduced to certain extent but the women leaders sensed the notional presence
of gender disparity. They recognized two loopholes in the legislation firstly
the act excluded from its ambit the daughter rights in her fathe's property.
Secondly, the Agriculture lands which were the main subsistence asset of that
time were excluded from its purview.
This called for a rather more concentrated
work towards the women rights and aimed at the establishment of a committee to
work in this direction which could at times provide inputs on fighting the
gender notional practice of suppression. Subsequently, the Rau Committee was
established to provide more representation to this issue and direct at the
necessary policy changes. The committee prepared the draft for social upliftment
of the status of women in this direction.
One of the main aims of the committee
was to afford certain right to daughters with respect to the property. The Rau
committee was successful in drafting a code to such effect but the low
representation of women on the political fronts led to its failure many times.
It was finally in 1951, when the Hindu Code Bill was accepted and various
changes were affected in the Hindu Succession Laws. And ultimately, the Hindu
Succession Act 1956 came into effect.
Hindu Succession Act 1956
The Hindu Succession Act 1956 was a way forward in bringing about a change in
the status of women rights where its ambit granted daughters a right in the
property of their father which were not in place before the legislation. The act
aimed at reducing the gender differentiation between males and females as the
heirs of the family property. The act being a personal law required the state
legislator support for its aimed objective fulfilment and to prevent the women
from facing regional disparities.
Hence, the act replaced the Aliyasantana Act,
the Travancore Nayar Act and many more to affect a uniform framework in the
establishment of increased women authority in terms of property inheritance and
succession. The daughters would now were eligible to hold a share in the
notional partition of their fathe's property. However the law was still
silent on the coparcenary rights of women in the joint family property.
difference in the share of sons and daughters to the tune of joint family
property was still seen as a stigma and was considered a reason of blatant
preference for men in the society as they were entrusted to carry forward the
lineage and daughters in the absence of these rights were considered more
dependent on their marital homes. This lead to visible disparity in the society
where the intent of the law governing the whole society was itself reflecting
its flawed gender notions with its limited rights to the daughters.
Amendment Act 2005
This unequal standing of women in the society was sensed to be an outcome of the
irregularities in the HSA 1956 where on the fronts of social justice and majorly
the property inheritance avenues, the women were afforded a lower standing. The
174th law commission report to this effect recognized this unequal social
standing of the women in the society and specifically pointed towards the
discriminating clauses in the codified law.
However the state legislations to
this personal law were appreciated in the states of Andhra Pradesh, Maharashtra,
Karnataka and Tamil Nadu where the amendments partially swept the discriminated
clauses but the need was of a central act modification which could work as
authority in granting rights to the women. The law commission report contributed
immensely to the foundation of the Hindu Succession Amendment Act 2005 that
served the long impending social justice to the women rights.
The Amendment act
stuck off the Sections 23 and 24 with major amendment in the Section 6 affording
a more beneficial on-ground equality. The Amendment Act stuck off the Section
4(2) which held the participation of women in inheritance of even the
agricultural lands. The act also with its amendment in Section 6 granted a
by-birth coparcenary right to the daughters equal to the male descendants in the
joint family holdings.
It was in the case of 'Vineeta Sharma vs. Rakesh Sharma
', that the Hon'ble Supreme Court cleared the applicability of the
said amendment where the law was applied retroactively. The court referred to
the intention of the legislation that the coparcenary rights were promised to
the daughters by birth and it was irrelevant that the father was alive on or
after the amendment i.e. 09 September 2005.
The amendments in the original act
of Hindu Succession Act 1956 truly served justice to the women rights where it
would provide a social standing to women in the society and moreover an
economically secure future where at the same time entrusted with the belief of
carrying the lineage of family ahead. However it can be said that there are
still scopes for more amendments but the law has definitely come a long way from
initially legislating for a widow's subsistence needs to adopting a gender
lens in affecting equity in the society.
Gendered Notion in the Reforms
It is the foremost expectation from legislation to be able to produce equality
and offer the opportunities from a gender neutral point of view. However as we
see today there are various avenues where women are placed at par with men, be
it in educational sector where the seats are often reserved for females, or in
parliament where they are given a fair chance considering the magnitude of
representation they have received in the past.
But the equality that we see as
existing today is a long fought battle. This is evident from the opposition that
the Hindu Code Bill (HSA) faced. The women were referred by the Anti HSA groups
as requiring the protection of men at all times whereas the proponent's
claimed that with liberty and freedom they can interact with other humans in a
very efficient manner.
The women were also claimed to be causing destruction in
the long running joint families and the families would break if they were given
the rights to manage the property. However this perception was defeated when the
names of women who lead movements in the past came to the table. It was the near
future that revealed the efficiency of providing women with a more equitable
position in the households and upliftment of their social bearing.
relationship of women's property ownership and socioeconomic outcome from it
had concluded that women give more value to the family needs, For instance, in
India the increase in income of the lower-caste women exponentially increased
the expenditure on schooling (Lake and Munshi 2011) which was a way towards
achieving a well developed and mindful societal establishment.
What more needs to be done
With the coming in of legislations from codifying the Hindu Personal Law to now
the Amendment Act of 2005, the Hindu law of succession and inheritance has
achieved milestones in the way of establishing gender equality beginning from
the codification requirement for a widow's subsistence after her husband's
death to now granting daughters with an equal coparcenary right as the sons.
However there are still some shortcomings in the act where the gender notions
are even prevalent today. As the principle act of 1956 progressed, the rights of
a widow are still limited to the extent of coparcenary rights.
daughters are afforded an equal share but widow's still do not have a coparcenary right. It would be a true acknowledgment of a
and sacrifices after the death of her husband if she had a coparcenary right in
the joint family property as the sons and daughters but the act is still silent
on this note and in-turn discriminates between the different members of the
class of women.
Secondly, the discrimination that women face today is also the
result of their religious beliefs that results from the existence of old
practices which treats women differently than men. The personal law is so deeply
rooted in the religion that the objective of affecting a gender neutral system
gets defeated on ground. Essentially when the devolution of the property of
women takes place, the heirs of the husband gets a priority than the women's
heirs including siblings and parents.
However this is not the case when the men's property devolution takes place, there is no mention of female heirs who
could inherit the property but only the husband's heirs are given a
preference. This marks the presence of patriarchy in property devolution and
still the existence of discrimination on the basis of gender can be sensed.
Hence, the devolution of property of males and females should be articulated in
a similar pattern whereby treating the natal families of both with a similar
The property rights are a very essential part of the subsistence needs and a way
of carrying forward the lineage. It has time and again proved essential for an
economic and social standing but will it be acceptable to say that only men
needs this social standing? The most common response to this would be a NO
however it is so embedded in our social structure that women still suffer a
setback when this appears as a question to carry forward a lineage.
reform initiatives have surely come way forward in causing an end to this gender
based discrimination whether it was the first codification of Hindu Personal Law
and doing away with the Mitakshara and Dayabhaga School of thoughts or providing
a right of share to a daughter in her fathe's property. However it cannot be
said to have progressed to an extent that is needed to equate the socioeconomic
standing of both genders. But with the adoption of a gender neutral lens the
legislators can be entrusted to take a decision that places both the genders at
par with each other.
- Sona Khan, ��Inheritance of Indian Women: a Perspective��
(Jstor2000) ;accessed November 10, 2020
- Reena Patel, ��Hindu Women's Property Rights in India: A Critical
Appraisal�� (Jstor2006) ; accessed November 07, 2020
- Aparajita Goyal, ("Women's Inheritance Rights and Intergenerational
Transmission of Resources in India" by Klaus Deininger 2013) ;accessed
November 10, 2020
- Hindu Succession Act 1956
- The Hindu Succession (Amendment) Act, 2005
- The Hindu Women's Rights To Property Act, 1937
- The Madras Aliyasantana (Karnataka Amendment) Act, 1961
Award Winning Article Is Written By: Mr.Aman Sharma
- 174th Law Commission Report, Property Rights of Women: Proposed Reforms
Under the Hindu Law (2000).
- Vineeta Sharma vs. Rakesh Sharma, (2019) 6 SCC 162.
- Section 23; disentitles a female heir to ask for partition in respect of
a dwelling house wholly occupied by a joint family until the male heirs
choose to divide their respective shares therein. It is also proposed to
omit the said section so as to remove the disability on female heirs
contained in that section [Now Repealed].
- Section 24 ; Certain widows remarrying may not inherit as widows [Now
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