PROPERTY RIGHTS OF WOMEN- FOCUSING ON THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

By Soundarya Vats

One of the most ancient works and problematic texts also, the “Manu smriti” quotes “Her father protects her in childhood, her husband protects her in youth and her sons protect her in old age; a woman is never fit for independence”. Manu smriti was considered the first constitution, as most people didn’t happen to notice such loud misogynistic statements under that text. This is the most probable reason that deems fit as to why society didn’t voice for women’s rights for such a long period of time. Not only then, but there are also nuances still (irony to call it a nuance, as there is still so much inequality between men and women), even though we have come a long way in ascertaining rights to women. Indian women continue to struggle for their deserved rights. The Hindu succession amendment act of 2005 did pave the way for them to enjoy the same property rights as for a man but the stereotypes and prejudices that lingers along:

“As having grown up in a patriarchal society, it never occurs to most women to ask for their rightful share.”

According to statutory law

The Indian Constitution enshrines the proposition of gender parity in its Directive Principles, Fundamental Duties, the Preamble, and Fundamental Rights. Further, some constitutional provisions lend support to the paradigm of equality, social justice and empowerment to combat gender inequality: -

è Article 14 that commits to "equality before the law" that ensures universal rights that all people, regardless of birth, ethnicity, gender or race, are same before the law and “Equal protection of laws” which stands for no discrimination and unbiased protection of rights and laws of people in India. Moreover article 15(1) (3), 16, 39, 42, 46, 47, also include provisions relating to gender parity.

Conforming to the Hindu succession amendment act of 2005, daughters have equal right of inheritance as sons to their father's property. This came out as a major landmark judgement in context to property distribution in India. The Hindu Succession (Amendment) Act, 2005 (39 of 2005) came into force from 9th September, 2005. The Amendment Act repeals the Hindu Succession Act of 1956's gender restrictive clauses and grants daughters the following priviliges in the section 3 of the act:

  1. The daughter of a coparcener becomes a coparcener in her own right by birth, in the same way as the son;

  2. In the aforementioned coparcenary property, the daughter is subject to the same obligation as a son.

  3. The daughter enjoys the same fraction as a son.

Prior to the amendment act of 2005, the Mitakshara school of Hindu law codified and formalised as the Hindu Succession Act, 1956 which regulated property succession and inheritance but only recognised men as legitimate heirs. It was applied to Hindus, Sikhs, Jains, and Buddhists. The concept of undivided Hindu joint family is the basis of the act. Only male descendants of a common ancestor, as well as their mothers, spouses, and unmarried daughters, have traditionally been considered a Joint Hindu household. Female born out in the same Joint Hindu Family was not granted any of such rights of inheritance, their right of ownership was restricted to the stridhan. Under the old Hindu Law (even before the act of 1956) only the “streedhan” (properties gifted to her at the time of marriage by both sides of the family and by relatives and friends) was the widow’s absolute property. But finally, in 2005, this amendment was used to make certain amendments to the Hindu Succession Act, 1956. the changes that were made:

  • Section 4(2)- This provision was discriminatory to the property rights of women on agricultural lands. This share can be found mostly in rural areas. Hence this clause was removed, thus ensuring women’s interest in agricultural land as that of men.

  • Section 6- This was the most landmark provision to be amended. The amendment allowed the previous provision under Section 6 of the act to be removed and a new one to be added. By virtue of this new clause, the daughter automatically becomes coparceners of the Joint Hindu Family's property, with rights and obligations identical to those of a son.

  • Section 23- The removal of section 23 of the statute, which explicitly discriminated against female heirs seeking any partition in the dwelling place that the intestate left before the male heir chose to do so, was another significant change brought in by this amendment.

  • Section 24- This section was also removed with the 2005 amendment, which discriminated against three categories of women related to the intestate, including the widow of a predeceased son, the widow of a predeceased son of a predeceased son, and the widow of a brother, due to their remarriage as a result of the succession being opened. The first two categories of differentiated widows, namely the "widow of a predeceased son" and the "widow of a predeceased son of a predeceased son", belong to Class I heirs, whereas the third type, namely the "widow of a brother", belongs to an agnate i.e., person descended only through male line. That is, because they are intestates, they inherit the property immediately following the intestate's death, and their rights are allocated appropriately.

  • There is section 30 also that was redrafted, an attempt made to make this section gender-neutral by referring words “disposed of by him” to disposed of by him or her”.

As in the case of married daughters, they have the right to the residence at father’s house if she is deserted, divorced or widowed. A married woman has exclusive rights over her individual property.

The Indian society is prejudicial and orthodoxical and in no way we can find it to change itself from the very mentality. The patriarchal tactic here is that at her marriage, a women’s parents or brothers lavish her with presents while excluding her from the broader picture. The woman, on the other hand, is entitled to both her husband's and her father's property in accordance with the rule. It's amusing that men want their wives to bring stuff from their paternal houses yet refuse to pay their sisters their fair portion.


Author: Soundarya Vats

Course: 3rd year(BA LLB).

Collage: Amity Law School, Noida

13 views0 comments