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Women and property rights

While judicial pronouncements have provided a limited extent of gender equality in property rights, legislative measures are necessary to protect a woman’s property rights, says SUJATA KUMARI MUNI.

Sujata Kumari Muni | New Delhi |


The progress of any society depends on its ability to protect and promote the rights and interests of its women. Property rights and other economic rights offered to women under different statutes in India are quite complex and the issue further gets perplexed after their marriage, since they become part of a new family.

Since India is a home to diverse religions sans a uniform Civil Code and each religion is governed by its respective personal laws, there is no uniformity with respect to the property rights of women. Such rights are immune from Constitutional guarantee of equality, fairness and are highly fragmented on the basis of several factors like religion, geographical region, community, the status of the woman in the family i.e., daughter or wife or mother, their marital status such as married or unmarried or deserted or widow and also the kind of property i.e., ancestral or self-acquired, land or dwelling house or matrimonial property.

This is a propitious moment to reassess the property and economic rights of women in the changing context of globalisation.

The interplay of law, ideology, politics, and economic changes offers food for thought for judges and scholars to rethink the property rights of women.

The Hindu Customary Laws and Rules historically deprived women of their legitimate rights. Women were denied property rights except the Stridhan which were gifted to them at the time of marriage.

These rights have evolved with the passage of time in response to changed conditions. In 1937, the British rulers promulgated the Hindu Women’s Right to Property Act, 1937 for the well-being of Hindu widows which conferred on them the right to inherit landed property in the intestate property of their husbands. However, the Act suffered from some inherent loopholes, as it was silent on the rights of women when the deceased husband had disposed of all his property by will, the shares of women in agricultural lands and the rights of inherence of other women in general. However, after independence, the Hindu Succession Act, 1956 was adopted to allow women to inherit landed property including other movable and immovable properties from male heirs.

After a prolonged discourse in public domain and push from the Law Commission, the Amendment Act, 2005 prescribes that a woman could be a coparcener by birth i.e., in her own right in the same manner as the son. In Prakash v. Phulavati (2015), the Supreme Court ruled that if the coparcener (father) had passed away prior to the 2005 amendment, his daughter(s) would have no right to the coparcenary property. Recently, the Supreme Court in Vineeta Sharma vs Rakesh Sharma (2020) , held that a coparcener’s legal right flows from being born in the family and she will have right to the coparcenary property irrespective of whether the father was alive or not at the time of 2005 amendment. In case of death of the daughter before the amendment, her share can be passed on to her children.

The right to reside in the matrimonial house of a woman has been another thorny issue which was dealt in S R Batra vs. Tarun Batra (2007), wherein the Supreme Court had ruled that an aggrieved woman in case of matrimonial conflict with her husband will have a right to reside in a house only when it is owned or tenanted by the husband. It observes that if her in-laws own the house and the husband has no legal right in it, she cannot assert her right to live there.

The said position of law has undergone a change in Satish Chandra Ahuja vs Sneha Ahuja (2020), wherein the apex Court held that an aggrieved woman has a right to reside in a house, even if she or her husband may not own the premises jointly or singly, or might have taken it on rent jointly or singly.

The household may even belong to a joint-family or be rented by the woman’s in-laws but the woman still has a right to reside in it if she has been living there after her marriage. Such right of residence shall exist as long as the matrimonial relationship between her and her husband remain intact.

Multitude of judicial pronouncements have established gender equality in property rights of women to a limited extent. It is still riddled with lot of ambiguities in granting equal property rights to women. Sections 8 and 9 of the Hindu Succession Act, 1956 provide general rules of succession in the case of males dying intestate and sections 15 and 16 provides the same for woman.

There is unequal order of succession i.e., in the event of a woman’s death the heirs of her husband are given preference over her own parents. However, in case of a man, his relatives get to inherit the property. To empower the women better, the laws require to be made genderneutral, and the order and rules of succession for both men and women have to be equal.

It is imperative that a general awareness about the rights of women needs to be created.

Further, a separate provision in the Hindu Succession Act can be incorporated exclusively to provide the contours of stridhan i.e., any kind of forceful recapture or usurpation of the stridhan or exclusive property of the bride would render such ownership null and void, and the commission of such act would be penalised.

These disparities in inheritance and succession under the Act force women to be subordinate to men and increase their economic vulnerability.

The dominance of parochial influence should end with respect to their property rights.

For the women to be in a bargaining position, the property rights require an egalitarian approach for men and women. In fact, property rights are considered to be an inalienable human right, a position recognised by the International Human Rights Law and conventions.

The bicameral legislative body, an independent judiciary, and the other checks and balances established by the Constitution are expected to create a political climate in which property interests of women would be better protected.

The writer is an Advocate, Supreme Court of India.