“A daughter always remains a loving daughter. A son is a son until he gets a wife. A daughter is a daughter through-out her life.”

-By Justice Arun Mishra

The above lines is quoted from the case of Veneeta Sharma V. Rakesh Sharma.

In ancient time, the legal rights to inherit the property for women were very much difficult, unequal and unfair. In Manusmirti, it is written that “ her father protects her in childhood, her husband protects her in youth and her son protect her in old age, a women is never fit for independence.”

The proportion of share for women in ancestor’s property were always less than the male member of the family. The division of property for women is vary from religion to religion and place to place. They are govern by their respective personal laws like Hindus, Sikhs, Buddhists, Jain they all are governed by one code. Christians are governed by another code, Muslims have not codified their rights, neither in Shia nor in Sunni. Tribal women of various regions are governed for property rights by the customs and norms of their own tribes.

The rights of women in property is also determined by their religious schools, their marital status, or whether they are tribal or non tribal and so on.
Constitution also guarantee equality and fairness for women, article 14 states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, place of birth or any of them and gives special protection and rights to women through legislation. Although, constitutions gives rights and equality to women but there is also inequalities which has been faced by women to get their rights in property.

Women right’s in Property in ancient time

Prior to Hindu Succession Act, 1956 Hindus were governed by Shastric (colonial) and Customary laws which varied from region to region on the basis of caste system. Women didn’t have right to control and ownership of property. In Mitakshara, a women have no right in ancestor’s property as compare to son. No female member were allowed to be coparceners. In Manu it is mention that by seven means the property could be acquired by women:-

1. Inheritance

2. Finding

3. Friendly donation

4. Purchase

5. Landing at interest

6. Performance of work

7. The acceptance of gifts from virtuous men

Vedas also excluded women from the property, in Vedas there is a text which says that “Nirindriya hyadayadah strio nritam” which means devoid the prowess and incompetent to inherit, women are useless.
In Quran, Prophet Mohammed said that “learn the law of inheritance, and teach them to the people, for they are one half of useless knowledge.’’ Muslim law is not codified law and it is very discrimative towards women. The Quaranic verse says that “the male shall have the equal of the portion of two female.” In both Sunni and Shia, Muslim women were excluded from the ancestor’s property.

Present position of women in property

Rights of women in property in Hindu law

The Hindu succession act, 1956 is to provide uniform system for inheritance among Hindus and give rights to women in property. Prior to the Hindu succession act, 1937 which gives right to widow in property for the first time, but this act has some flaws which later fulfilled in Hindu succession act, 1956. Hindu succession act applies to both Mitakshara and Dayabhaga School.

Section – 6 of Hindu Succession act, 1956 deals with coparcenary right. Under this section, the daughter gets all the rights including right to ask for partition of property and become karta of family. However, the daughter who is born in family only she could get coparcenary right not all the women came into the family. In case of the married woman, she continue to be a coparcener in her parental home and her rights to ask for the partition and become karta in her husband’s home.

When the married women has died, her children shall get the rights in her property and if none of the children are alive then her grand-children gets her share.

Rights of women in Muslim law

Islam is very first religion which gives women as a legal entity and gave her all rights like inheritance, possession, ownership, education, marriage and divorce. Muslim personal law is still uncodified and most of decision is based on norms mentioned in Quran and Hadith. In absence of proper codified law the Muslim women are in very much dilemma because it gives unclarity in various rights and various analysis of Quran. Indian Muslim women are always get very less rights in property in compare to male. Mahr is only concept of which is unswerving connected with the right of property for Muslim women. Under Muslim law, it is duty of husband to maintain his wife and that maintenance is known as Nafqah which includes food, lodging and other essentials requirement for livelihood.

At the time of iddat (divorce), reasonable and fair maintenance to be paid by former husband.
According to Islamic law of inheritance, person on the basis of age, sex, order of birth or marital status shouldn’t be discriminate for inheritance.
Women rights in inheritance may vary according to her relation and in some case it might more, in some case it might less and in some case it might be equal.

Conclusion

Apart from ongoing struggle for Uniform Civil Code in accordance with constitutional framework. Today’s time Indian women are fighting to get their right in marital property, demands uniformly across l the religious boundaries. And in this, the response of judiciary gets better from day to day time.

In Hindu Succession Act, there were mainly three judgement given by Supreme Court which gives the right of women in property and they are as:-
In 2016 , Prakash v. Phulvati, in this Supreme court says that a has to be alive on date of enforcement of 2005 amendment and the daughter can claim her right under 2005 amendment act.
In 2018, another judgement were given by Supreme Court in the case of Danamma V. Amar Singh, which says that the father may had died before, yet the daughter will get equal share.
And later on the final judgement were given in August 2020 in case of Vineeta Sharma V. Rakesh Sharma, it says father need not to be alive on the date of enforcement of 2005 amendment.

Similarly, in Muslim law the landmark judgement were given in case of Mohd. Ahmad khan V. Shah Bano, in which the triple talaq has been banned.

This blog is authored by-Varnita Tiwari

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Women Rights in property: an overview