RIGHT TO PROPERTY FOR WOMEN 2021

    This article has been written by Yukta Bajaj

    Introduction: RIGHT TO PROPERTY FOR WOMEN

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    RIGHT TO PROPERTY FOR WOMEN

    Women play an integral role in every field from production of food and goods to work in fields, to factories, and  across the globe. Women right in property is as equal right as men. Women’s property rights are property and inheritance rights enjoyed by women as a category within society at any point in time. India doesn’t have a Uniform Civil Code, which means the law in matters pertaining to inheritance and sharing of property differs for people from different faiths. The two important laws in regard to property share are the Hindu Succession Act, 2005 and the Indian Succession Act, 1925.

    The two important legal term is :-

    • Testamentary: The passing of property to the beneficiaries named in the will.
    • Intestate: an intestate person is one who dies without writing will.  In that case, the property is divided equally between all his children irrespective of gender.

    Like other human rights issues, women property rights are linked to discriminatory inheritance practices, agriculture, gendered control over economic resources, right to work and domestic violence or violence against women. Granting women equal property rights means decreased threat of discrimination, domestic violence and other human rights violations. It also has positive impact on political participation and women empowerment.

    HINDU SUCCESSION (AMENDMENT) ACT

    The Hindu Succession (Amendment) Act, 2005, an amendment to the Hindu Succession Act, 1956, received the assent from President of India on 5 September 2005 and was given effect from 9 September 2005. It was essentially meant for removing gender discriminatory provisions regarding property rights in the Hindu Succession Act, 1956. It was a revolutionary step in the field of Indian legislation regarding rights of women in India.

     Amendment of section 4 of the principal Act:- In section 4 of the Hindu Succession Act, 1956 , sub- section (2) has been omitted.

    Amendment of Section 6 of the principal Act:- Section 6 in the principal act has been substituted by the amended provision. The amended provision under sec. 6 of the principal act in essence defines as follows:-

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    RIGHT TO PROPERTY FOR WOMEN

    The Hindu Succession (Amendment) Act, 2005, the pious obligation of a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather under the Hindu law, came to an end.

    Exception

    The amendment, under clause 5 of section 6 provides an exception as follows:

    5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

    Explanation.- For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the registration act,1908 or partition effected by a decree of a court.

    What is coparcenary?

    A joint Hindu family means all people lineally descending from a common ancestor, including wives and unmarried daughters. A Hindu coparcenary is a much narrower group. It consists of the the person from whom a line of descent is traced and three of his descendants. Coparcenary property is the one which is inherited by a Hindu man from his father, grandfather, or great grandfather.

    The property in coparcenary is held as joint owners, and only a coparcener has a right to demand a partition of this property. Before 2005, the coparceners included only sons, grandsons, and great grandsons who are holders of a joint property. But the 2005 amendment to Section 6 of the Hindu Succession Act essentially gave equal rights to daughters in ancestral property. So the amendment allowed daughters to be recognised as coparceners by birth in the family, similar to sons.

    As there are different right to property for women in different religion as explain below:-

    In Muslim Law

    Daughter

    • the daughter’s share is equal to one half of the property with son.
    • She always had full control over this property.
    • Daughters have rights of residence in parent’s houses, as well as right to maintenance, until they are married. In case of divorce, charge for maintenance reverts to her parental family after the iddat period (approximately 3 months). In case she has children capable of supporting her. The charge falls upon them.

    Wives

    • In Islamic law a woman’s identity, though inferior in status to a man’s is not extinguished in him when she marry.
    • She retains control over her goods and properties. She has a right to the same maintenance he gives to his other wives, if any, and may take action against him in case he discriminates against her.
    • The Supreme Court has held that in the case of divorce, a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3 (1Ha} of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and liability of Muslim husband to pay maintenance is not consigned to iddat period.
    • She will inherit from him to the extent of one eighth if there are children or one fourth if there are none. If there is more than one wife, the share may diminish to one sixteenth. In circumstances, where there are no sharers in the estate as prescribed by law, the wife may inherit a greater amount by will. A Muslim may dispose of one third of his property by will, though not to a sharer in the inheritance.

    Mothers

    • In case of divorce or widowhood, she is entitled to maintenance from her children.
    • Her property is to be divided according to the rules of Muslim law.
    • She is entitled to inherit one sixth of her deceased child’s estate.

    Hindu Law

    Daughters

    • Daughters have equal right of inheritance as sons to their father’s property.
    • Daughters also have a share in the mother’s property.
    • The Hindu Succession (Amendment) Act, 2005 (39 of 2005) came into force from 9th September, 2005. the Amendment Act removes gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the following rights to daughters
      • The daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son;
      • The daughter has the same rights in the coparcenary property as she would have had if she had been a son;
      • The daughter shall be subject to the same liability in the said coparcenary property as that of a son;
      • The daughter is allotted the same share as is allotted to a son;
    • A married daughter has no right to shelter in her parents’ house, nor maintenance, charge for her being passed on to her husband. However, a married daughter has a right of residence if she is deserted, divorced or widowed.
    • A woman has full rights over any property that she has earned or that has been gifted or willed to her, provided she has attained majority. She is free to dispose of these by sale, gift or will as she deems fit.

    Wives

    • A married woman has exclusive right over her individual property. Unless she gifts it in part or wholly to anyone. She is the sole owner and manager of her assets whether earned, inherited or gifted to her.
    • Entitled to maintenance, support and shelter from her husband, or if her husband belongs to a joint family, then from the family.
    • Upon partition of a joint family estate, between her husband and his sons, she is entitled to a share equal to as any other person. Similarly, upon the death of her husband, she is entitled to an equal share of his portion, together with her children and his mother.

    Mothers

    • She is entitled to maintenance from children who are not dependents. She is also a Class I heir.
    • A widowed mother has a right to take a share equal to the share of a son if a partition of joint family estate takes place among the sons.
    • All property owned by her may be disposed by sale, will or gift as she chooses.
    • In case she dies intestate, her children inherit equally, regardless of their sex.

     JUDGEMENTS

    • In a landmark judgment Tuesday, the Supreme Court held that daughters will have equal coparcenary rights in Hindu Undivided Family properties, irrespective of whether the father was alive or not on 9 September 2005, when an amendment came into force.Asserting that this right under Section 6 of the Hindu Succession Act, 1956, is acquired by birth, the bench, comprising Justices Arun Mishra, S. Abdul Nazeer and M.R. Shah, observed, “The provisions contained in substituted section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
    • The court was dealing with an interpretation of Section 6 of the Hindu Succession Act, 1956, after it was amended in 2005. The amendment gave equal rights to daughters in ancestral property.
    • The Supreme Court ruling has categorically held that the 2005 Amendment would apply to any daughter who was living at the time of passing of the Amendment. Thus, every daughter would be considered a coparcener. This is irrespective of whether the daughter’s father was living or deceased when the 2005 Amendment was passed, according to Bijal Ajinkya, Partner, Khaitan & Co.Previous judgments by the Supreme Court such as Prakash vs Phulavati (2016) and Danamma (2018) have given conflicting decisions in this regard. The Supreme Court decision has overruled Prakash vs Phulavati in its entirety and Danamma to the extent that it conflicts with the present ruling, Ajinkya added.