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WHEN IS THE PROPERTY OF A FEMALE CONSIDERED AS HER ABSOLUTE PROPERTY UNDER THE INDIAN LAWS?

INTRODUCTION

Women are an important part of society and she constitutes almost half the population of India. She plays different roles in a family but when the time comes to give her rights in the family, she is said to take a back seat. The major reason for this problem is that our society is male dominant. Since ancient times, it is noticed that women’s rights over family property are denied. In India, the inheritance of property was mostly decided on the basis of Mitakshara and Dayabhaga schools. Women’s right over property was not given much importance under these schools. This was because women were considered inferior to men. The most they could get was stridhan during her marriage. whilst, males, i.e., son, grandson, great-grandson could get right over the family property by birth. Later it was recognized that the empowerment of women is necessary for a country to develop. It was realized women need to be given equal rights as men. As a result, different legislations were enacted to provide women with rights over their family property. The current article would study the absolute rights of women over property according to Indian legislation.

EVOLUTION OF HINDU PROPERTY LAWS

The first legislation that gave women certain rights over family property was the Hindu Law of Inheritance Act, 1929. The act gave inheritance rights were given to three female heirs of the family, son’s daughter, daughter’s daughter, and sister. This act marked the beginning of the enactment of such laws which gave importance to women over property rights and helped them get long-delayed justice. Another significant legislation that gave women the inheritance right was the Hindu Women’s Right to Property Act, 1937. This act allowed widows to get the same share of the deceased’s property along with their son. However, she was not considered a coparcener like the male heirs of the deceased who had absolute right over the property.  Women were given this limited right over the property for maintenance in their lifetime. This act was revolutionary, but it did not address all the women in the society instead it concentrated only on widows because of which it wasn’t considered that fruitful for the property rights of women. Prior to the enactment of the Hindu Succession Act, 1956[1], the women’s right over property was divided into two heads: stridhan and women’s estate. Stridhan literally means woman’s property (‘stri’ denotes woman and ‘Dhan’ denotes property). It usually includes both movable and immovable property. Stridhan consists of the gifts which she got before her nuptial fire, which was given at the bridal possession, which was given to her as a symbol of love during her marriage, and which was given by a father, mother, and a brother. She had absolute right over the stridhan. The property she inherited from her husband after his death or property inherited from her father was considered as women’s estate. She only had limited right over the property and not full ownership.

HINDU SUCCESSION ACT, 1956

Post-Independence, Hindu Succession Act, 1956 was the major enactment that brought revolutionary changes in the property rights of women. Earlier, women only had absolute rights over stridhan and not women’s estate. However, section 14(1) under this act gave women absolute right over “any property possessed by her whether acquired before or after the commencement of this act, shall be held by her as the full owner thereof and not as a limited partner.”[2] The property under this section includes all the movable and immovable property which she attained by inheritance or devise, or because of partition or for her maintenance or as arrears of maintenance, or as a gift by any person or because of her own skill or work or by purchase. all of these will be considered as her stridhan and thus her limited ownership will be transformed to absolute ownership. In the Gulwant Kaur v Mohinder Singh[3] case, the husband gave his wife the property for maintenance in 1958 but he sold that property in 1968. The court in this case observed that after the commencement of the Hindu Succession Act, any property possessed by the Hindu female would be considered as her absolute property and thus the sale will be void.  It is observed that the concept of women’s estate or limited ownership is tried to be wiped out. However, section 6 of the said act, gave only male heirs the birth right to coparcener property and the female heirs were not given any right to be coparcener. Because of this, female heirs were restricted to having limited ownership over the property. This was one of the drawbacks of this act. Another drawback was with respect to confusion over the retrospective effect of section 14(1). The said section read as before or after the commencement of the act which clearly denotes that this section of retrospective nature even though the entire was not. There were doubts raised about the scope of section 14 with respect to the limited and absolute ownership of the property. This was addressed by the supreme court in V. Tulasamma vs V. Sesha Reddi[4]. In this case, the owner died and Tulasamma got allotted certain properties as limited owner under a decree. After the Hindu Succession Act, of 1956, she alienated her property as an absolute owner. The question here was whether section 14 (2) will apply. The court held that since the property was allotted as maintenance, there would be no application of section 14(2). If the property was acquired without any pre-existing right, then it would have been within the ambit of section 14(2). In a recent case, Jogi Ram v Suresh Kumar, the supreme court observed that the limited estate provided to the Hindu female through a will can be considered as absolute property under section 14(2) provided that it is for her maintenance. If the grantor had already taken care of her maintenance and had given her only limited estate then it cannot be alienated as absolute property under section 14(2). In such a case, section 14(1) of the said Act would apply.

HINDU SUCCESSION AMENDMENT ACT, 2005

The Hindu Succession Amendment Act, 2005[5] addressed the discrimination which women were facing with respect to succession and inheritance rights in the Hindu family. It amended section 6 under the Hindu Succession Act, of 1956 and gave equal rights coparcenary rights to both son and daughter. The daughter will now become a coparcener by birth. This would ensure that the women’s right over property is not restricted to only limited ownership but has absolute ownership.

CONCLUSION

The Indian legislation has come a long way from almost no property rights to becoming a coparcener in line for inheritance. The Hindu Succession Act, of 1956 was beneficial in providing absolute property rights to women. Hindu Succession (Amendment) Act, 2005 was beneficial for granting coparcenary rights to female heirs. It also repealed sections 23 and 24 which discriminated against women and deprived them of the rights to ask for partition and for a widow especially to inherit her husband’s property after her re-marriage. the judiciary now should efficiently interpret these legislations and enable women of their rights over the property.

Author(s) Name: Divya K (Symbiosis Law School, Hyderabad)

References:

[1] Hindu Succession Act, 1956, No. 30, Acts of Parliament, 1956 (India).

[2] Id. § 14 (1).

[3] Gulwant Kaur v Mohinder Singh, AIR 1987 SC 2251.

[4] V. Tulasamma v. V. Sesha Reddi, 1977 AIR 1944.

[5] Hindu Succession Amendment Act, 2005, No. 39, Acts of Parliament, 2005, (India).