WOMEN’S RIGHTS IN PARENTAL PROPERTY

“Women constitute half the world’s population, perform nearly two-thirds of its hours, receive one-tenth of world’s income and less than one hundredth of the property.” United Nation’s report.

It’s a historical stigma that the Indian society had also been living with, i.e., the discrimination of its women against male siblings/relatives. Daughter’s parents, from times immemorial, had been forced to pay huge amounts in dowry, to marry off their daughters or they be killed by Religious preachers, on the eve of their widowhood, to snatch away all the property left by her husband, in the name of Religious ceremony ‘SATI’.

We should thank the Britishers for mitigating the agony of the widows, who eradicated this inhuman practice of ‘Sati’. However, even for many years after Independence, our constitution, which propagates equality, could not stop discrimination on the basis of gender, in respect of Laws of inheritance.

Through this article, I intend to take you along the historical development of the inheritance rights of women, before and after the Hindu Succession Act, 1995, which governs the devolution of property among Hindus, then after the amendment in 2005.

How the Hindu succession act came into being

Before 1956, Hindus were governed by property laws which varied from region to region and in some cases within the same region, from caste to caste.

The Hindu inheritance law was governed by majorly two schools. The Mitakshara school of succession, which was prevalent in most of north India, believed in the exclusive domain of male heirs. In contrast, the Dayabhaga system did not recognize inheritance rights by birth and both sons and daughters did not have rights to the property during their father’s lifetime.

With the advent of the Hindu Succession Act, 1956, there was no change in the rights of Indian women. Till September 09, 2005, this disparity continued, till the Hindu Succession Act, 1956 was amended in 2005, allowing daughters an equal share in ancestral property.

Despite resistance from orthodox sections of Hindus, the Hindu Succession Act was enacted which came into force on June 17, 1956.

Under the Hindu law, a Hindu Undivided Family (HUF) is a body comprising of more than one person, all lineal descendants of a common ancestor. A HUF can be formed by people of Hindu, Jain, Sikh or Buddhist faith. In this article we will be discussing about the inheritance of such property.

Under the Hindu law, the rights of inheritance of ancestral and self-acquired properties are different, which are discussed under two following heads:

1. Law regarding self-acquired property:

In the case of a self-acquired property, i.e., where a father has bought a piece of land or house with his own money. In this case, the father has the option to gift the property or will it to anyone he wants, and a daughter will not be able to raise an objection.  

2. Law regarding Ancestral property:

The ancestral property is defined as one that is inherited up to four generations of male lineage and should have remained undivided throughout this period. It is the one that is inherited up to four generations of male lineage, by natural succession and not by any other way. So, by law, a father could not will away such property to anyone he wanted to, or deprive anyone of his share in it.

Position before 1956

Before the Hindu Succession Act, 1956, the women of the family, including the widows and daughters had a right of limited estate in the ancestral properties. they, as a moral obligation, could be maintained out of the returns of the property, but they did not have the right of alienation, nor could they seek partition thereof.

Position from 1956 to 2005:

Members of the HUF, like daughters and mothers, had the right of maintenance from HUF property, as well as to get a share in the property of the HUF if partition of the HUF took place. While sons had absolute right over their father’s property, daughters enjoyed this right only until they got married. After marriage, a daughter became part of her husband’s family property.

Position after 2005:

However, until the Hindu Succession Act, 1956, was amended in 2005, the inheritance rights of property of sons and daughters were different. According to Hindu Succession Amendment Act, 2005, every daughter, whether married or unmarried, is considered a member of her father’s HUF and can even be appointed as ‘karta’ (the manager) of his HUF property, if she is the eldest in the family. The amendment now gives daughters the same rights, duties, liabilities and disabilities which were earlier limited only to sons. So, in such situations, a father cannot will such property to anyone he wants to. Now by birth, daughters have a share in the ancestral property.

Rights of women in different situations:

You may have queries of sorts as to rights of women in different situations, some of which are discussed as follows: –

• In case father dies without a will
  Post amendment in 2005, if a father dies without leaving a will, his property, whether ancestral or self-acquired, will be equally divided among all the legal heirs. According to the Hindu Succession Act, a male’s heirs are classified into four classes. In this case, the inheritable property goes first to class I heirs, which include widow, daughters and sons and they have parity. Each heir is entitled to one part of the property, which means that as a daughter or a widow, you have a right to one share in your father’s/husband’s property. 
  
• If daughter is married
  Before 2005, as per the Hindu Succession Act, daughters were considered only as members of the Hindu Undivided Family (HUF), not coparceners. The coparceners are the lineal descendants of a common ancestor, with the first four generations, having a birth right to ancestral or self-acquired property. However, once the daughter was married, she was no longer considered a member of the HUF.
  After the 2005 amendment, a daughter has been considered as a coparcener, at par with her male siblings and her marital status had no effect on her rights over the property, whether ancestral or self-acquired, left behind by her father. Consequently, the daughter gets all the rights attached with a coparcenary, including the right to ask for partition of the property and to become a Karta of the HUF.
  After marriage, a daughter will cease to be a member of her parental HUF, but will continue to be a coparcener. Thus, she is entitled to ask for partition of the HUF property, as well as to become the Karta of the HUF, in case she happens to be eldest coparcener of her father’s HUF.
• If daughter was born before 2005
  It does not matter if the daughter was born before or after September 9, 2005, when the amendment to the Act was carried out. She will have the same rights as of a son to the father’s property, be it ancestral or self-acquired, irrespective of her date of birth, provided the father was alive on September 9, 2005. If the father had died before 2005, she will have no right over the ancestral property and the self-acquired property, as it will be distributed only amongst the coparceners, which did not include the women of the family, before 2005 Amendment. Even a daughter, living or dead on the date of amendment, will be entitled to share in father’s property, thus enabling her children too to claim this right.
  Similarly, in case of a married daughter who has died, her children shall be entitled to the shares that she would have received, if she was alive on the date of the partition. In case none of her children are alive on the day of partition, the grandchildren will be entitled to the shares that the daughter would have received on partition.
  Interestingly, the daughter cannot gift her share in the HUF property while she is alive but she is fully capable of giving away her share in the HUF property by way of a will. If a will is not prepared, on her death, her share in the joint property shall not devolve on other members of the HUF but will pass on to her legal heirs.
  Despite the favorable provisions of law, as discussed above, it is sad to note that the daughters are still discriminated against, when it comes to inheritance. The society still does not relish the demand of the daughter of her share in the parental property and all fair and unfair means are adopted to deprive her of legitimate claim over the same. However, as far as the law is concerned, at the expense of repetition, there is no difference between the rights of inheritance of daughters and sons.