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Daughters to inherit fathers' self-acquired, inherited properties, to get preference over others: SC

  • Category
    Society
  • Published
    25th Jan, 2022

Context

In a significant verdict, Supreme Court said the daughters of a male Hindu, dying intestate, would be entitled to inherit the self-acquired and other properties obtained in the partition by the father.

Background

  • The judgement, which came on an appeal against the Madras High Court verdict, dealt with the property rights of Hindu women and widows under the Hindu Succession Act.
  • The bench was dealing with the legal issue concerning the right of the daughter to inherit the self-acquired property of her father, in the absence of any other legal heir.
  • Justice Murari, writing the 51-page judgment for the bench, also dealt with the question of whether such property will devolve on to the daughter upon the death of her father, who died without a will, by inheritance or shall devolve on to father's brother's son by survivorship.

Analysis

What did the verdict say?

  • If a property of a male Hindu dying intestate (without a will) is a self-acquired property or obtained in the partition of a coparcenary or a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals (such as sons/daughters of brothers of deceased father).
  • Right of a widow or daughter to inherit the self-acquired property or share received in the partition of a coparcenary property of a Hindu male dying intestate is well recognized not only under the old customary Hindu Law but also by various judicial pronouncements.

The landmark judgement

  • On 11 August 2020, the Supreme Court of India delivered a landmark judgement.
  • It held that daughters would have equal birth rights in Hindu Undivided Family properties, irrespective of whether the father was alive or not on 9 September 2005, when the Hindu Succession Amendment Act (HSAA) came into force. 
  • This judgement comes almost 15 years after the initial amendment that removed discriminations against girls in allowing daughters coparcenary rights in ancestral property, similar to sons.

What are the property rights of women in India (Hindu Law)?

In India, daughters have equal right of inheritance as sons to their father's property. Daughters also have a share in the mother's property.

The two important laws in regard to property share are the Hindu Succession Act, 2005 and the Indian Succession Act, 1925.

Hindu Succession Act, 2005 

  • 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

The Indian Succession Act, 1925

  • Transfer of property of Hindus and Muslims by a will (testamentary succession), Christians, Parsis and Jews are governed by The Indian Succession Act. 

Women Rights in India: Constitutional Rights and Legal Rights

The rights entitled to women in India can be classified broadly into two categories namely constitutional rights and another one is legal rights but there is an exception in the case of fundamental rights.


  • Constitutional Rights: The Constitutional Rights are the rights granted by the Constitution of India to the citizens of our country which are provided in the various provisions of the constitution. Any infringement of constitutional rights, we can approach the Supreme Court on its violation.
  • Legal Rights: The legal rights, on the other hand, are those which are provided in the various laws (acts) of the Parliament and the State Legislatures. The legal rights are protected by an ordinary law, but they can be altered or taken away by the legislature by changing that law.
  • Fundamental Rights: The Supreme Court is the guardian of fundamental rights. Further, all constitutional rights not fundamental rights e.g. right not to be subjected to taxation without authority of law (art. 265), right to property (art. 300a), and freedom of trade (art. 301). A fundamental right cannot be waived. 

The various constitutional and legal rights for women enshrined in India are summarized in the below table-

Constitutional Rights

Legal Rights

Article 15(1): The state shall not discriminate against any citizen of India on the ground of sex.

Protection of Women from Domestic Violence Act (2005) enacted to protect women in India from all forms of domestic violence. It covers women who have been/are in a relationship with the abuser and are subjected to violence of any kind—physical, sexual, mental, verbal or emotional.

Article 15(3): The state is empowered to make any special provision for women. In other words, this provision enables the state to make affirmative discrimination in favor of women.

Indecent Representation of Women (Prohibition) Act (1986) prohibits indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner.

Article 16(2): No citizen shall be discriminated against or be ineligible for any employment or office under the state on the ground of sex.

Medical Termination of Pregnancy Act (1971) provides for the termination of certain pregnancies by registered medical practitioners on humanitarian and medical grounds.

Article 39(a): The state to secure for men and women equally the right to an adequate means of livelihood.

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (1994) prohibits sex selection before or after conception and prevents the misuse of pre-natal diagnostic techniques for sex determination leading to female feticide.

Article 39(e): The state is required to ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength.

Indian Penal Code (1860) contains provisions to protect Indian women from dowry death, rape, kidnapping, cruelty and other offenses.

Article 243-D (3): One-third of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women.

National Commission for Women Act (1990) provided for the establishment of a National Commission for Women to study and monitor all matters relating to the constitutional and legal rights and safeguards of women.

Article 243-T (3): One-third of the total number of seats to be filled by direct election in every Municipality shall be reserved for women.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (2013) provides protection to women from sexual harassment at all workplaces both in public and private sector, whether organized or unorganized.

The persistent challenges for women

  • Despite significant advancement in inheritance laws, only a small percentage of women own land in rural landowning households.
  • Even though laws recognise women’s right to a fair share of the property, in reality, their right is being denied due to various social, cultural, and institutional reasons. 
  • There is no comprehensive and accurate data on land ownership in the country.

Why do women face so many issues in Indian society?

    • Prevailing Patriarchy: Indian Society has been a male-dominated society. This has led to inferior treatment to women in society in every front of life.
    • Considering Women as a Liability: The constitution of India provided equal status or rights to women as the rights of men are concerned but strong patriarchal traditions persist in many different societal parts, giving them less opportunity to express their rights as they are bound by the old age tradition practiced by the Indian society. In this modern era, daughters are often regarded as a liability and conditioned to believe that they are inferior and subordinate to men, whereas sons might be idolized and celebrated. 
    • Persistent of dowry tradition: Dowries were made illegal in India in 1961 but the practice persists for most marriages as it is considered to be the utmost discrimination against women. But, this system is still persistent in society.
    • Discrimination: The extent of discrimination against women varies from one social stratum to another and from state to state as India is the vast country where cultural backgrounds, religions, and traditions vary widely. Many Indian women face discrimination throughout all stages of their life beginning at birth, continuing as an infant, child, adolescent, and adult.
    • Poor socio-economic status: Women’s historical experience of discrimination puts them at a disadvantage position economically. Socio-economic status of women to a greater extent plays a significant role in enhancing their participation and representation in political decision making bodies. Lack of economic resources is one of the biggest obstacles that prevent women from participating in politics in greater numbers.
    • Lack of education:  Various researchers found that female panchayats heads to be less acquainted with the functioning of the Panchayati system than their male counterparts. 
  • Other barriers:
    • weak implementation of policies, insufficient capacity to enforce laws, and a lack of political will 
    • poor access to legal services
    • a lack of understanding of laws within communities and households 

What measures are required?

  • Men are considered superior over women and males are also freer than females in this prevailing patriarchal, orthodox and tradition-bound Indian social system.
  • While women have come a long way, freed to some extent from the discriminatory traditions of the past, are better educated, healthier and getting more paying jobs outside their homes, however, even today, they are fighting for freedom, safety, respect, and equality with men at home, and their workplace.
  • The discrimination with women cannot be ended by just promulgating laws without any public support and awareness about women rights. There is a need to create an environment free from fear, prejudice, oppression, discrimination, and violence. 
  • Moreover, every woman must be well educated, healthy, aware of her rights, safe, and financially independent, because that is the only way to achieve freedom from gender disparity. 

Conclusion

Even after many progressive judgments and laws, there is still a long way for women to get their due property rights. Given these challenges, the government must take a ‘gendered approach’ in implementing these laws and also facilitate the women folx to access their rights.

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