WOMEN’S RIGHT ON PROPERTY

Ever since humankind has come into existence the rights of women have always been unequal and unfair. One such right is the right on the property. The property rights of Indian women have evolved out of a continuing struggle between the conventional and progressive forces. While these rights have come a long way in comparison to the rights of women in the last century, Indian women still continue to get fewer rights than men.

Just like any other personal right, in matters related to property rights the Indian women are divided within themselves. India to date has failed to bring in a uniform civil code and women continue being divided into diverse religions.

Every religious community is governed by its own personal laws – property rights being one of them. Moreover, within these religious groups, some sub-groups are governed by their local customs and norms.

  • The Hindu Succession Act 1956, governs Hindus, Sikhs, Buddhists, and Jains, Christians are governed by the Indian Succession Act, 1925, while the Muslims do not have any codified property laws.
  • Also, the tribal women of various parts of India continue to be governed by the customs and norms of their tribes.
  • To complicate this whole web further, under the Indian Constitution, both the State and the Central governments are competent and have the power to enact laws on matters of succession. Hence the states can, and as some have, enacted their own interpretations of the property laws within each personal law.
  • The sad reality is that the property rights of the Indian woman still get determined depending on which religious school of thought she follows, on her marital status, which part of the country she belongs to, whether she is a tribal or not, and so on.

Ironically by and large, with of course a few exceptions, courts have refused to test various personal laws on the touchstone of the Indian Constitution to strike down those that are clearly unconstitutional and have left it to the wisdom of legislature to choose the time to frame the uniform civil code as per the mandate of the Directive Principles under Article 44 of the Indian Constitution.

Following is an attempt to chart out the interesting struggle of socio-legal forces leading to the current property rights that Indian women have as they stand today.

The framework of Equality: In the Indian Constitution

  • The Constitution of India has a substantially extensive framework to ensure equality amongst its citizens. It guarantees equality to all persons, under Article 14 as a fundamental right. Article 14 of the Constitution of India states that no person shall be denied equality before the law or the equal protection of the laws within the territory of India.
  • This view is supported and strengthened by Article 15, which states the prohibition of discrimination on any ground, including the ground of sex:- The State shall not discriminate against any citizen on grounds of religion, race, caste, sex, or place of birth. Women have always been one of the sections vulnerable to discrimination and hence have been expressly protected from any manifestation or form of discrimination.
  • The Indian courts time and again in Shantistar Builders v. Narayan Khimalal Tortame,

P.G. Gupta v. the State of Gujarat and Chameli Singh v. the State of U.P. has taken an expansive definition of the fundamental right to life under Article 21 of the Constitution. They have taken it as an umbrella provision and have included within it the right to everything which would make life meaningful and which prevents it from making it a mere existence, including the right to food, clean air, clean water, health, and the right to shelter.

However, as mentioned above, notwithstanding the repeated and strong Constitutional guarantees of equality to women, the property rights of Indian women were far from gender-just before 2020, though many inequalities have been ironed out in courts.

What is the 2005 law?

  • The Mitakshara school of thought of the Hindu law codified as the Hindu Succession Act, 1956 (now referred to as the Act); governed succession and inheritance of property but recognized males as the only legal heirs. This law considers Jains, Sikhs, Buddhists, and followers of the Arya Samaj, the Brahmo Samaj as Hindus for all purposes under this law.
  • In a Hindu Undivided Family (hereinafter referred to as HUF), several legal heirs through 4 generations from a common ancestor can exist and own the property jointly.
  • Women were recognized as coparceners or joint legal heirs of the Mitakshara coparcenary for partition arising from 2005. Section 6 of the Hindu Succession Act,

1956 was amended to make a daughter of a coparcener also a coparcener by birth in her own right in the same manner as the son. This law also gave the daughter the same rights as well as liabilities in the coparcenary property as given to a son.

  • This law applies to all ancestral property and to intestate succession in any personal property where succession happens as per law and not through a will.
  • The 174th Law Commission Report dated May 5, 2000, also recommended this reform in Hindu succession law. Even before the 2005 amendment, states such as Andhra Pradesh, Karnataka, Maharashtra, and Tamil Nadu had made these changes in the law, and Kerala had abolished the Hindu Joint Family System in 1975.

How did the case Vineeta Sharma vs. Rakesh Sharma and Ors., 2020 come about?

  • While the 2005 amended law granted equal rights to women, multiple questions were raised in various cases on whether the law applied retrospectively or prospectively, and if the rights of such women depended on the living status of their father through whom they would-be beneficiaries.
  • Different benches of the Indian Apex Court had conflicting views on this issue. This lead to different High Courts following different views of the apex court as binding precedents.
  • In Prakash and Ors. v. Phulavati and Ors, 2015, a two-judge bench held that the benefit of the 2005 amendment could be granted only to living daughters of living coparceners as of September 9, 2005 (the date from which the amendment came into force).
  • In February 2018, on contrary to the 2015 ruling, a two-judge Bench in Danamma v. Amar and Ors. held that the share of a father who died in the year 2001 will also pass to his daughters who are coparceners during the process partition of the coparcenary property as per the 2005 law.
  • These conflicting views by the different benches of an equal strength led to a three-judge Bench referring to this case. The ruling passed on 11.08.2020 now overrules the verdicts passed in 2015 and April 2018. It finally settles all the confusion related to the laws in question and explains the intention behind the 2005 amendment, to remove the discrimination caused by section 6 of the Hindu Succession Act, 1956 by giving an equal right to daughters in the Hindu coparcenary property of a HUF as the sons have.

What was the Indian government’s stand?

1 MANU/SC/0582/2020

  • Solicitor General of India, Mr.Tushar Mehta argued in favor of an expansive reading of the law to allow equal rights for women. While making submissions, he referred to the objects and reasons for the 2005 amendment.
  • He further submitted that the coparcenary law contributed to discrimination on the ground of gender and negated the fundamental right of equality guaranteed by the Indian Constitution under article 14.

How did the apex court reach a final decision?

  • The court looked into all the rights available under the Mitakshara coparcenary. Since Section 6 creates a right created by birth for the daughter of the coparcener, this same right cannot be limited to the fact that the coparcener is alive or dead.
  • The court observed that the 2005 amendment gave recognition of a right that was accrued by a daughter at the time of birth. The bestowal of this right is given by birth, and the rights are given in the same manner as that to a son. She will be treated as a coparcener in the same manner along with the same rights as if she had been a son at the time of birth.
  • Though the rights can be claimed, with effect from 9.9.2005, the provisions are of retroactive application, that is the coparcenary under the HUF shall be deemed to include a daughter as a coparcener.

What is the ruling at the end?

  • It was ruled that a Hindu woman’s right to be a legal heir to the ancestral coparcenary property of the HUF is by birth and does not depend on whether her father was alive or dead when the law was enacted in the year 2005. The legislation of 2005 gave Hindu women a right to be coparceners in the same way a male heir does. This ruling has removed the incompatibility between the two rulings (2015 &2018) by upholding the 2018 ruling.
  • The ruling finally cleared all the confusion and ruled that since coparcenary is unlocked by birth, it is not necessary that the father coparcener should be living as on 9.9.2005 and that If the woman dies before the amendment came into force, her share can be passed on to her children.

Conclusion

This revolutionary judgment has finally put an end to male primacy in being the sole beneficiaries of all the ancestral property in a Hindu family. It has also ruled that all the registered settlements relating to division, sharing, or alienation of any coparcenary

property made any time before December 2004, cannot be reopened. This judgment is extremely important because an equal right to property is one of the key factors in ensuring the equality of women with men. This helps gender justice become more real to women.

This is just one of the many milestones achieved and we have many more to go, to achieve equality for men in every aspect. We have a long struggle left but this is a big victory for all Indian women. This is just one of the many milestones achieved and we have many more to go, to achieve equality for men in each and every aspect. We have a long struggle left but this is a big victory for all Indian women.

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