This article on ‘Property rights of Women in India: All you need to know‘ was written by an intern at Legal Upanishad.
Introduction
Human rights are a cluster of certain standards of human behavior implemented to protect humans from all kinds of violence and discrimination. Women’s rights are covered under human rights. Globally recognized rights include the right to live without violence, slavery, and discrimination, the right to education, to own property, to political representation, and the right to health, dignity, and equality in wages.
Indian women’s property rights were undeniably discriminatory, though there have been lots of amendments and advancements made in this respect, there are still many discrepancies in terms of property distribution between men and women, regarding both, quality and quantity.
The following are the various criteria upon which an Indian woman’s property rights are based, like- which religion and doctrine she follows, whether or not she is married, the place she resides, that is, if she belongs to an ethnic group, and so on. India, with its diverse religions and traditions, has a plethora of regulations that differ for each religion. As such there are no specific property rights of an Indian woman; further, the government has also enacted its own set of laws and rules under different personal laws for the property rights of women.
The following are the different property rights that every woman in India should be aware of:
Personal laws
Personal laws are rules based on religious doctrines that are followed by the masses. These sets of laws govern their belief system. The most well-known personal laws in India are Hindu, Muslim, and Christian personal laws.
Under Muslim Personal law
The Muslim personal law is known as Sharia. Its source is the Holy Quran. In Islam, females inherit from three sides, the father, her husband, and her son. Muslim women also acquire property through Maher, gifts, and so on. A female is generally accorded one-half the share of a male from her father’s side. A son has double the share of a daughter and she is the sole owner of the inherited property. If there is no brother, she receives half of the inheritance. Gifts are not subject to inheritance law, and as such daughters are eligible to receive them from those they inherit from.
The landmark Shah Bano case was India’s most high-profile maintenance lawsuit, the SC held that It is the husband’s responsibility to make reasonable and equitable provisions to support his former wife even after separation. The said period extends beyond iddat and the husband must also provide maintenance to support his children. A widow has a 1/8 share in her deceased husband’s property and if there is more than one wife then the share goes down to 1/16. A mother inherits 1/6 share from her deceased son if the son has children of his own and 1/3 share if there are no grandchildren.
Under Hindu personal law
The property rights of women in Hinduism, Buddhism, Jainism, and Sikhism are: The husband’s property is evenly distributed between his spouse and offspring. A widow has the same right to her late husband’s property as their children. A divorced woman will have no claim on the former husband’s property, even if their children are minors, after the settlement of maintenance. With the enactment of the HSA, 1956 the right of Hindu women were laid out and was passed to remove gender inequality in matters relating to inheritance.
Hindu women’s property rights are highly unstable due to a variety of factors. The property rights of Hindu women depend greatly on their family and marital status; whether the woman is, married or unmarried or deserted, or widow or mother or daughter. These rights also change depending upon the property that is to be inherited, for instance, if a property is ancestral or self-acquired, plot or residence, matrimonial property, and so on.
While there was a transformation in the inheritance rules after the enactment of the Hindu Succession Act, it has its flaws when it comes to women’s property rights because it still does not give the daughter of a coparcener in a Joint Hindu family the right to be coparcener by birth or to have entitlement by birth in the same way as the son. As per Section 6 of the Hindu Succession Act, equal status was granted only to daughters whose fathers were alive on September 9, 2005, when the amendment was enacted.
However, in the landmark Vineeta Sharma vs Rakesh Sharma judgment, the court gave retrospective effect to the above section. The SC held that daughters whose fathers died intestate before the amendment date have equal rights to the property as well. The Supreme Court ruled that the daughters have an equal share of their father’s property by birth.
Under Christian personal law
In Christian law, a daughter has the same right to inherit as a son. Christian women receive 1/3rd share of the predeceased husband if they have children and half of the share if they have no offspring. Another peculiar feature is that. Even though the pre-deceased son’s children receive an equal share, the widow of that son, however, does not receive any shares. If there are no lineal descendants, after debiting the widow’s share, the remaining property transfers to the intestate’s father in the first instance.
However, if the intestate’s father is deceased but his mother, brothers, and sisters are still alive then the property will be divided equally among them. If the intestate has only a surviving mother, the entire estate will be inherited by the mother.
Under Parsi law
Under the Parsi law, a mother’s share will be 1 part the same as the father’s. A widow/ widower will receive 2 parts and the daughter/ son will also receive 2 parts. Parsi law is mostly gender neutral in terms of inheritance; however, there are some issues to consider: for example, the widow of a predeceased son who died naturally receives no share at all.
Apart from personal laws, other property rights are guaranteed to a woman of any faith. Such as:
- After marriage, the ownership of the property held by a woman does not change, unless it is given by her as a gift. The husband and in-laws have no right over it.
- If the property is purchased with the husband’s funds and is registered under the wife’s name then the wife will be the sole owner of it.
- According to the law, a woman cannot be forced to evict the house by her husband or in-laws, even if the property is not in her name.
- A wife’s property cannot be used to repay the debt owed by her husband or relatives.
- A property purchased by a woman in the name of her children or spouse can be claimed as hers if proof in the form of a receipt is provided by her in court.
Suggestion
- A legal heir certificate is required for anyone involved in a property dispute case. It is available from the Tahsildar. A succession certificate should be issued by the court. With the present legal system and court procedures, the case could last for at least two years.
- “If your parents have a will, remember to get a copy with you when you get married. This is important to avoid any disputes with siblings about your right over it after marriage”, advised Dinesh Rohira, the Founder & CEO, of 5nance.com
Conclusion
India lacks a singular law in matters relating to property and the kind, the law regulating inheritance and partition differs for people of different faiths. This results in inequity.
The Hindu Succession Act of 2005 and the Indian Succession Act of 1925 are two important laws governing property distribution. According to these laws, a person who dies intestate does not leave a testament, in such a situation the property is divided equally amongst all of his offspring, regardless of gender and legitimacy. If UCC is implemented court’s burden will be reduced and disputes will also be resolved swiftly if these laws are followed by all religions.
References:
- Inheritance under Muslim law, available at: https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf
- Mohd. Ahmad Khan v. Shah Bano Begum 1985 SCC 556
- Laasya Shekhar, November 18, 2020, at: https://citizenmatters.in/interview-on-womens-legal-share-in-property-21580
- V.Tulasamma & Ors. versus V. Sesha Reddi, (1977) 3 SCC 99
- Vineeta Sharma vs Rakesh Sharma, CIVIL APPEAL NO. DIARY NO.32601 OF 2018
- Savvy women, Recent changes in women’s property rights, January 20, 2022, at: https://savvywomen.tomorrowmakers.com/wise/8-legal-estate-and-property-rights-guaranteed-women-article