INTRODUCTION
Since time immemorial women were treated as slaves or shadows of men with no independent life of their husbands and were considered as mom ki gudiya i.e. Physically and mentally unfit than men to hold property. We know that Indian society is a patriarchal society where women are considered to be the responsibility of the man of the house, who has to earn for their family. In Manusmriti, it was stated that money shouldn’t have any property. In Yajnavalkya Smriti, it is stated that slaves and women shouldn’t have any property. So we can see this was the societal view at that time where women were dependent upon their fathers after marriage on husbands and, in old age, on children, so they didn’t have any independence of their own. But some legal reforms were made to correct it. So let’s study the history of women’s property rights in India.
PHASES OF WOMEN PROPERTY RIGHTS IN INDIA WITH LEGAL REFORMS
Now the Hindu concept of property is divided into two schools: Mitakshara and Dayabhaga. However since Mitakshara school is prevalent in most parts of the country, we will restrict our present blog to Mitakshara school. Now there are 3 phases of growth in women’s right to property.
Ancient Phase (Before 1937):In ancient times, women were not considered equal to men; thus, their rights were also not equal to those of the male members of society. They were denied the right to property because of their incompetency to participate in sacrificial rituals and were not allowed to offer funeral cake for the spiritual salvation of the common ancestor, so it can be inferred that the denial of property rights for women has its roots in religious practices. In this phase, the ancient books and scriptures didn’t give any rights to women in terms of property, as they were considered dependent upon their husbands in marriage and sons in old age. During this time, there were two types of property: stridhan and non-stridhan, and former women had the right to dispose of it, but in practice, it was limited. It included gifts during her marriage, while in the latter, women had no right over this as they couldn’t sell that property without their husband’s consent. If we talk about joint family property, women didn’t have any right to be coparcenary and share it with other male family members, consequently, they had no right to dispose of it. The reason was inequality between men and women. The widow of a deceased co-owner could not get his share and was not allowed to enforce a partition of his husband’s property. Women had only maintenance rights to joint family property. During the later part of this period, when the British came to rule, this rule was still followed, as we can see from the judgment of the Privy Council in Bhugwandeen Dubey vs. Mynabaee and Hindu women were also stopped in Benares Hindu law from alienating the moveable property also inherited from husbands, which on the death of the widow devolves upon the heirs of the husband. This was done to prevent conflicting judgments as the Bengal school adopted the more stringent form of ancient text, which was finally approved by the Judicial Committee of the Privy Council. So women had only maintenance rights during this period and no legal reform during this period..
Mediaeval period (1937–1941): This was one of the most important phases, as many legal reforms were carried out for women’s rights. One of the major among these was the Widow Estate Act of 1937. Though women were not allowed to become coparceners, they were allowed to inherit the position of the deceased husband, so the operation of the coparcenary was postponed till her death. The Act gave those powers to the women that were previously only available to the men, such as the right to demand partition. But this right was again limited, as after the widow’s death, other co-authors got it by the doctrine of survivorship, but it was still a major reform for women’s rights to property. In this phase also their right was limited only to maintain after the death of the husband but still there were certain limitations like no remarriage after the husband’s death.
Modern Phase ( 1941–56): In this phase, major reforms were taken to ameliorate women’s conditions. The first step took place in 1941 by a four-member Hindu Law Committee, known as the Rau Committee, after its president, B.N. Rau, reported that the time had come for a Hindu Code. Social progress and modernization could only be achieved by abecedarian reforms that honored gender equivalency. The law was to be shaped with the aid of orthodox, conservative, and reformist Hindus and by a comprehensive blending of the styles of the current seminaries of Hindu law and the ancient texts. The 1941 Report was accompanied by two draft bills, each of which was laid before a select commission of both houses of the council. Important hype was given to the design and as a result of the panels’ reports, the Hindu Law Committee itself was revived in 1944, and under its president, B.N. Rau, it prepared a draft law dealing with race, conservation, marriage and divorce, nonage, and custodianship and relinquishment. It was that law that was extensively circulated, bandied, and given the name “Hindu Code Bill” of 1948. The Only Hindu Race Act of 1956 came into being, which abolished all the old patriarchal customs that confined women’s rights. One of the two major sections under this was Section 14, which defeated the conception of women’s limited estate and gave the right to a woman to acquire and hold property as an absolute proprietor, and any property on which she had a limited right becomes her absolute property after the inception of the Act, irrespective of whether it’s portable or immovable. While making this section, Congress tried to clear any nebulosity that may have arisen by mentioning in Subsection (22) that this rule does not apply to choices, gifts, or any other instruments, or the decree of a civil court that prescribes a defined estate in such a property. Despite all these sweats at the end of the Parliament, when the Act came into power, this section remained in contestation as it was being interpreted in numerous ways. Section 6 of the Act laid that by the death of a member of the coparcenary, the property devolves upon the mama, widow, and son, along with the son in the same share by testamentary or intestate race, and not by the rule of survivorship. Heritage, by the rule of survivorship, wasn’t allowed if there were female heirs. The concept of stridhan was also enlarged, which now included both portable and immovable property. Also, women had the right to dispose of their property through wills by way of Section 30. But still, this Act has its downsides, similar to the fact that this Act does not give the right to a daughter to be a co-owner and share joint property like a son, i.e., they can only succeed in separating the property of the father.
Post Modern(1956-Present)– In this phase, the viewpoint of society was changing from a patriarchal society to a feminist society, and as the country was becoming a welfare state, reform was needed to remove the old, backward customs that acted as a hindrance to the growth of India. One of the major reforms took place to correct the problem caused by some former laws and to make women entitled to property not only in theory but in practice too. One of the major changes was the introduction of an amendment to the Hindu succession Act of 1956, also called the Hindu succession amendment of 2005. It took the reform process more forward by allowing daughters to be co-owners with equal rights as sons through amendment to Section 6 of the Hindu Succession Act and abolishment of Section 23, which gave women rights over dwelling property, and by removing the disqualification of remarriage on the widow of an instate through amendment to Section 24. Now, due to these changes, a daughter, despite being a coparcener, can also be the karta of the family. Despite this, there are many criticisms of this amendment, like that only daughters were made coparceners, not other women, and only daughters could be karta. Though the amendment was a catalyst for women’s property rights, there is still a need for further amendment and reform to remove the inequality between men and women in property to its fullest.
Conclusion
We can see the phases of Women’s right to property and how it has developed over the years. We can see certain positive impacts being made by certain reform measures but every coin has two sides this reform still has certain problems and challenges; the problem remains its implementation and the view of the society remains the same that daughters are not equal to sons due to which many challenges to the implementation of the act. In the end, the Government.
In the end, I suggest certain measures to the government which they can take to improve women’s position in property matters.
* First the Government should improve the finances of legal reform to implement them successfully
*Second administrative lethargy and corruption should be removed
*Third Government should do ground reality research and then frame policy
*Fourth most important is to change the attitude of people towards women
*Fifth is to spread awareness among the people about this reform process
*Sixth Government can come up with strict legal action against the violators
*Seventh is that Government can learn from its earlier mistakes and then make certain Amendments in the Old act so that it becomes responsive to changing needs and Circumstances.
REFRENCES
*ICJRT,https://ijcrt.org/papers/IJCRT1705305.pdf, Accessed on 7th July
*RESEARSCH GATE, https://www.researchgate.net/publication/255701546_Property_Rights_Of_Hindu_Women_The_Constitution_-_3-12-091, Accessed on 7th July
*JSTOR, https://www.jstor.org/stable/4017753, Accessed on 7th July
BOOKS REFEERED
*PONNAM PRADHAN SAXENA,LECTURES ON FAMILY LAW II ,(2015)
*PARAS DIWAN, FAMILY LAW ,(2010)
CASES REFEERED
*Bhugwandeen Dubey vs. Mynabaee MANU/PR/0016/1867