1. Property rights in India: Women are not getting their due; here is how

Property rights in India: Women are not getting their due; here is how

Property rights of women in India have a long way to go before women get their due

By: | Published: October 26, 2017 3:34 AM
Property rights in India, Property rights in India for women, Uniform Civil Code, Property rights of Muslims, Indian Succession Act, supreme court, UNFPA The Hindu Succession Act, 1956, was the first law to provide a comprehensive system of inheritance among Hindus—and Jains, Sikhs and Buddhists—and address gender inequalities in the area of inheritance. (Reuters)

While the debate around the Uniform Civil Code is focused on marriage, divorce and maintenance, inheritance and property laws for women, too, need revisiting—most religious communities are governed by personal laws in several matters, including inheritance rights. While Hindus, Sikhs, Buddhists and Jains are governed by laws on property rights codified in 1956, Christians and Parsis are governed by the Indian Succession Act, 1925. Property rights of Muslims—both Shias and Sunnis—are yet to be codified. The Hindu Succession Act, 1956, was the first law to provide a comprehensive system of inheritance among Hindus—and Jains, Sikhs and Buddhists—and address gender inequalities in the area of inheritance. It applies only in the case of intestate succession and to anyone who converts to Hinduism and their children. The intestate’s children (married or unmarried daughter or son), mother and widow get equal share. It has no application in case of testamentary succession (where there is a will).

The Act confers absolute rights, including unfettered rights of disposal of property, on the female in any property—movable and immovable—acquired by inheritance, demise, partition, in lieu of maintenance, arrears of maintenance, gift, property acquired by her own skill, purchase, prescription or in any other manner, and also stridhana, which includes ornaments, apparel, gift received at the time of wedding, property acquired out of her savings.
In September 2005, the Supreme Court (SC) in a landmark judgment declared that Indian women would have an equal right to a share in property as men, granting daughters the right to inherit ancestral property along with male relatives.

“Despite the enactment of such legislations, instances prevail where women have not been made aware of their rights The urgent need is to communicate to the people the importance and significance of laws so that the future of rights and liberties become richer,” says SC lawyer Arti Singh.
In addition to legal remedies, the challenge of addressing inheritance issues of women calls for a societal response. In fact, many civil society organisations have been working towards promoting inheritance rights of women. For example, Girls Count, a coalition of civil society organisations, with support from UNFPA, is supporting a campaign called HerShare to promote inheritance rights and asset ownership for women and girls.

Muslim women

Muslims are governed in their personal matters, including property rights, under the Muslim Personal Law (Shariat) Application Act, 1937, which was introduced to replace customary law. This law is yet to be codified, though. A high point of the Muslim law is that it has given some independent rights to woman. Explains SC lawyer MR Shamshad, “The Islamic concept’s landmark is that when most part of the world treated woman herself as belonging to the man, Islam gave two independent rights to woman—the right to have marriage legally dissolved by mubarat, talaq, khula, and right to inherit property.”

Although Muslim personal law grants woman right to inheritance, a daughter’s right of inheritance is equal to one-half of the son’s share to their father’s estate. But a daughter has full control over her share of property and has the legal right to control, manage and dispose of her share as per her wish in life or after death. An unmarried daughter has the right of residence in her parent’s home and ask for support. If the married daughter gets divorced, the maintenance falls on her parents after the three-month iddat period, but if she has kids who can support her, then it is their duty to do so.

In case of divorce, apart from maintenance and mahr, a woman has the right to inheritance to the extent of one-fourth when there are no kids, and if there are kids, then to the extent of one-eighth. If the mother is widowed or she gets divorced, she has the right to receive maintenance from her children and inherit one-sixth share of her deceased child’s property.

Christian & Parsi (Zoroastrian) women

Laws of succession for Christians and Parsis are laid down in the Indian Succession Act, 1925—sections 31 to 49 deal with Christian succession and sections 50 to 56 deal with Parsi succession. Under the Act, Christian children inherit equally, irrespective of gender. A daughter inherits equally with any brothers in her father’s or mother’s estate if the father or mother dies intestate. If the deceased has left behind both a widow and lineal descendants, she will get one-third share in his estate while the remaining two-thirds will go to the latter. If no lineal descendants have been left but other kindred are alive, one-half of the estate passes to the widow and the rest to the kindred. If no kindred are left either, the whole of the estate shall belong to the widow.

SC lawyer Sunil Fernandes says, “The Indian Christian widow’s right is not an exclusive right and gets curtailed as other heirs step in. Only if the intestate has left none who are of kindred to him, the whole of his property would belong to his widow.” Another peculiar feature that the widow of a predeceased son gets no share, but the children whether born or in the womb at the time of the death would be entitled to equal shares. Prima facie, the property rights of Parsis are gender-just. A widow and all her children, both sons and daughters, irrespective of their marital status, get equal shares in the property of the intestate, while each parent, both father and mother, get half of the share of each child. However, there are some anomalies. For example, a widow of a predeceased son who dies issueless gets no share at all.

Despite strong Constitutional guarantees and courts taking an expansive definition of the fundamental right to life under Article 21 of the Constitution, property rights of Indian women are far from gender-just even today. Even if we have gender-just inheritance laws, their effective and timely implementation may be difficult, given the society we live in. It would help to simultaneously focus on economic empowerment of women. Making investment in girls’ ability to earn would not only make them self-reliant and independent, but also help them build their own assets in addition to getting their due inheritance. It calls for partnerships between programmes like Beti Bachao, Beti Padhao, civil society initiatives like HerShare, and even private sector’s CSR interventions.


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