WOMEN PROPERTY RIGHTS

&
COMPARISON BETWEEN
HINDU, CHRISTIAN AND MUSLIM.
Of all the evils for which man has made himself responsible, none is so degrading, so
shocking or so brutal as his abuse of the better half of humanity; the female sex.
-Mahatma Gandhi.
I raise up my voice not so I can shout but so that those without a voice can be heard,
we cannot succeed when half of us are held back.
-Malala Yousufzai
INTRODUCTION
The seed for personal law was sown by the British with the Bengal Regulation of
1772 providing that in disputes relating to family like inheritance, marriage, divorce,
adoption etc, the courts should apply the laws of Quran with respect to Muslims and for
Hindus, the Shastric law. As far as Christians were concerned, there was no specific law
for them. Hence disputes were settled as per English principles of Justice, Equity and
Good conscience. The British policy of non-interference with the personal laws of
different communities took its deep roots in the communities and the Government of
India has been continuing the policy of non-interference even though it has ratified the
CEDAW convention. So the Constitutional mandate of Uniform Civil Code under Article
44 of the Constitution went into oblivion.
Thus there is need to examine the property rights of Hindu and Muslim women in
their personal laws. An attempt has also been made to compare the inheritance rights of
women in their respective personal laws. There need to highlights the drastic reforms
brought about in the Hindu womens right to property by the Hindu Succession
(Amendment) Act 2005 that conferred birth right to Hindu women in the Mithakshara
joint Hindu family property. The property rights of Muslim women are also analyzed to
bring forth the disparity in the property rights of women belonging to Communities.
I. HINDU WOMENS RIGHT TO PROPERTY IN THE PRE-CONSTITUTIONAL
PERIOD
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A Hindu woman, whether a maiden, a wife or a widow has never been denied the
use of her property. Even in Manusmriti one can see that right to hold property had been
respected. Jurists like Yajnavalkya, Katyayana and Narada further promoted the concept
of womens right to property. Womens property rights improved and defined during their
time. The Smritikars created a unique type of property to women, the stridhana. Since
ancient times stridhana was treated as womens separate property. Jimutavahana went to
the extent of stating that woman has absolute control over her property even after
marriage. The ornaments, the wealth she receives at the time of marriage from her father
and relatives constitute her share. The gifts from her own and husbands family would
also be added to her own.
It was Gautama Dharmasastra who first called womens property as Stridhana
share. Mayne also opined that the original bride price payable to the parents appears to
have become transferred into the dowry for the wife. Apart from this stridhana, a married
woman could receive gifts from strangers; she could also make her own contributions by
doing other skilled labor. Yet she had no absolute control over her property because her
right to dispose of the property is restricted.This was done to control her. If there was no
control, she would become independent . So it is clear that women did not enjoy property
rights in the ancient period. Yet woman was allowed to keep her Stridhana as her separate
property.
Manu also followed the tradition of Gautama and recognized seven forms of
stridhana that consisted of gifts from relatives, (1) gifts before the nuptial fire (adhyagni),
(2) gifts during bridal procession to her husbands house (adhyavahanika) (3) gifts of love
from father-in-law and mother-in-law (pritidatta) and gifts made at the time of obeisance
at the feet of elders (pada vandanika) (4) gifts from father (v) gifts made by her father,
mother and brother (5) gifts received from her husbands family and fathers family after
marriage (anvadheyaka) (6) gift on supersession (adhivedamika). A present made to a
wife on her husbands second marriage. (7) Gift by bandhus (bandhudatta) the gift made
to her by her fathers or mothers relations.
The property she obtained before marriage or after marriage from her fathers and
husbands family constitute saudayika stridhana. A woman was given absolute right over
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her properties in the sense that nobody including father, mother, brother, husband and son
can take the property away from her. In case if the husband had borrowed from her, he
had to repay it with interest. Hence it sets out a warning that the male members should
not touch upon the property of the women. The property earned by her through her own
skills was classified as asaudayika stridhanam on which husband has control. This was
also formed her separate property. The only difference was that before disposing of it she
had to obtain husbands consent. With regard to enjoyment of her property she was
absolutely free.
1. WOMENS PROPERTY RIGHTS UNDER CUSTOMARY LAW IN THE SOUTHERN
INDIA

Certain customs existed in southern part of India among the Dravidians to give a
piece of land to the bride. The daughter can take this income and use it for her own daily
needs. This constituted her stridhanam and it was passed on to the daughter by the
mother. The land was named as manjalkani. This would enable her to have an income
for her needs especially to purchase turmeric and vermilion after marriage. Similarly a
custom of handing over 1/3rd of the property by the husband existed when he remarries.
It was called patnibhagam. In coastal Andhra Pradesh also a custom of giving land to the
daughter at the time of marriage existed. It was termed as Katnam. The peculiar feature of
this practice was that women could exercise control over this property even after
marriage.
In the same way 12% of the Karnataka Vira Saiva women also inherited property
from the mother which would be passed to the successive generations for daughters. It is
pertinent to note that women inherit this property where as even a boy could not inherit it.
The Sudra women from Dharwar region also enjoyed property rights. In spite of all these
womens right to property her freedom was restricted by way of non- participation in
decision making especially in financial matters and that it is a patriarchal concept.
2. WOMENS PROPERTY RIGHTS IN THE PATRIARCHAL FAMILY

A Hindu father in patriarchal family enjoyed absolute power just as the Roman
father in ancient Rome. The scriptures undoubtedly contributed much to make the father,
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the head of the family a despotic ruler. Manu said that three persons, a wife, a son and a
slave are declared by law to have in general no wealth exclusively their own; the wealth
which they may earn is regularly acquired for the man to whom they belong. Similarly
Narada held the view that a son could be independent only if his parents are dead; during
their lifetime he is dependent even though he is grown old. So in a patriarchal family
women and children did not have property rights. The wife was put into the group of
chattels and slaves. They had an oppressed and subjugated life in the traditional
patriarchal families.
Widows Estate
A Hindu Joint family consists of males and females. The married and unmarried
daughters continued to remain as members of the joint family. The male members are
coparceners with right of survivorship. The rules for survivorship had been laid down by
Narada. He said that if among several members, one childless dies or becomes a religious
ascetic, the other shall divide property excepting stridhanam. So widows are excluded
from survivorship. However this old rule has been repealed by the Womens Right to
Property Act 1937. As per the Act the interests of male coparceners devolve on their
death upon widows. This constituted Hindu womens estate. They were entitled to get
their share by Partition. This legislative reform was brought out by the British to improve
the status of widow.
Following the abolition of Sati the number of widows increased. In order to relieve
them of their miseries the Hindu Womens Right to Property was enacted to confer
property rights to them; she could enjoy the property during the lifetime. Her legal status
had been improved. She no longer had to depend on the husbands family for her
maintenance. The object of the Act was to introduce equality between men and women.
In fact clause 3 of the Bill provided that no person should be excluded from inheritance
and partition on the basis of sex. However when the Act came into force women were
granted only a limited right of inheritance the widows estate. It was found that the 1937
Act was inadequate to protect the interests of Hindu women and a committee was
appointed to prepare a comprehensive Hindu Code.
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b.GENDER EQUALITY: REFORMS IN HINDU LAW

The history of Hindu Law reform starts with the Hindu Law committee (Rau
Committee) set up in 1941. It was followed by second Committee in 1944. The
committee finally submitted its report to the Federal Parliament in 1947. The
recommendations of the committee were debated in the provincial Parliament. There was
strong opposition against the introduction of monogamy, divorce, abolition of
coparcenery and inheritance to daughters from the orthodox Hindu community. The
Congress legislator from West Bengal argued that only women of the lavender, lipstick
and vanity bag variety were interested in the Bill.
There were also fears among the orthodox Hindu men that if women were given
property rights families would breakup. In 1948 there was an All India Anti- Hindu Code
Convention. It was argued that the introduction of womens share would result into
disintegration of Hindu family system which had been working as a co-operative system
or ages for preservation of family ties and property. It was also pointed out that the
inclusion of daughter in the line of inheritance is due to European influence.
Although the top male congress leaders opposed the Bill, Jawaharlal Nehru and
Dr.Ambedkar were committed to the Bill. Nehru personally believed in womens claims
to equal property rights. Dr.Ambedkar had to struggle much due to the strong resistance
from the citadel of upper caste Hindus. In spite of the initial set back the Congress party
could enact four separate Hindu Codes.
The most contested area was womens property rights. As far as the State is
concerned unification of Hindu Law was paramount rather than womens inheritance
rights. This is reflected in the words of Archana Parashar. She said that the hidden agenda
was unification of the nation through uniformity in law. Establishing the supremacy of
the State over religious institutions was another important consideration. This could be
best achieved by re-defining the rights of women.There was strong opposition among the
congress itself against conferring inheritance rights to daughters. Consequently the
coparcenery system under the Mitakshara law was left untouched. As a result women
were denied rights in the ancestral property of a Hindu Joint Family. Only male members
could become coparceners and property devolves on them through survivorship. Women
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are totally excluded from inheritance. So inequality continued in the matter of property
rights even after the commencement of the Constitution.
The daughters had equal rights only in the separate or self acquired property of
their father. However the father can easily disinherit a daughter by executing a Will.
Section 30 of The Hindu Succession Act 1956 provides that any Hindu may dispose of by
Will or other testamentary disposition any property which is capable of being so disposed
of by him in accordance with the provisions of the Indian Succession Act 1925. Wills
were wholly unknown to Hindu Law according to Mayne. He says that there was no
name for them in Sanskrit or vernacular language.
He is of the opinion that Wills were brought to India during the Mughal rule and
later by the westerners35. So the English concept of testamentary succession found its
way into Hindu Succession Act 1956 by making section 57 of The Indian Succession Act
1925 to Hindus also. However the legislators ignored the protection granted to the family
members under the Inheritance (Provision for family and dependents) Act 1975 in
U.K36. During the Parliamentary debates, these lacunae were brought to the notice of
those who were vehemently opposing womens inheritance that it can be circumvented
through testamentary disposition.
3. HINDU WOMENS PROPERTY RIGHTS UNDER THE HINDU SUCCESSION ACT
1956

Womens right to property has been substantially improved by the Hindu

Succession Act 1956. The concept of women being entitled to a limited estate when they
acquire property by inheritance is abolished and women are entitled to an absolute estate
like men when they inherit any property. Again the daughter of a predeceased son and the
daughter of a predeceased daughter are raised to a higher rank. They became Class I
heirs and get a share along with the son, and other Class I heirs. The daughters are
included in the Class I in order to remove the discrimination on the basis of sex.
Similarly succession to a womens property or stridhanam of whatever nature is made
uniform irrespective of the nature of stridhanam. In the same way the distinction between
male and female heirs in the case of succession has been taken away and now they are

treated on equal basis if they belong to the same degree of relationship. Women will no
longer be disinherited on the ground of unchastity.
Under Section 14 of The Hindu Succession Act 1956, the limited interest of
Hindu female is converted into absolute rights. If she gets property from her husband she
can sell it and the purchaser gets absolute right in the property. Under this law family
members are entitled to inheritance legally.
Formerly she was not given the power of alienation.The provision has been given
retrospective effect. Consequently the limited estate becomes absolute. Another important
change brought out is to the explanation Section 6 of the 1956 Act. Upon the death of a
coparcener the property devolves upon his mother, widow and daughter along with his
son by testamentary or intestate succession and not by survivorship. This rule confers on
the women an equal right along with the male members of the coparcenary. It is to be
noted that Section 6 still retains the Mitakshara coparcenery excluding women from
survivorship as a result father and sons hold the joint family property to the total
exclusion of the mother and daughter despite providing a uniform scheme of intestate
Succession. The stringent restrictions under the Shastric law on female inheritance were
finally taken away by the Parliament to make it conform to the Constitutional mandate of
equality. The disability of women in inheriting the fathers property was undone under
Section 6 of the 1956 Act.
Similarly section 15 is the first statutory enactment that deals with succession of
Hindu females property when she dies intestate before the Act the property of women
dying intestate was governed by customary Hindu law. She had only limited interest
which would be terminated on her death. It is heartening to note that the Act provides two
different laws based on the sex of the intestate. This double scheme is the traditional
method intended to protect the family property. The property of a female Hindu dying
intestate shall devolve according to the rules set out under section16. (a)Firstly sons and
daughters (including the children of any predeceased son or daughter) (b) secondly upon
the heirs of the husband thirdly upon the mother and father (d) fourthly upon the heirs of
the father and (e) lastly upon the heirs of the mother.
Again (a)any property inherited by a female Hindu from her father or mother shall
devolve in the absence of any son or daughter of the deceased(including the children of
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any pre deceased son or daughter)not upon the heirs referred to in sub section (1) in the
order specified there in, but upon the father.(b)So also any property inherited by a female
Hindu from her husband or from her father in law shall devolve in the absence of any
son or daughter of the deceased (including the children of any pre-deceased son or
daughter)not upon the other heirs referred to in sub section1 but upon the heirs of the
husband. This separate scheme of succession reflects a strong patriarchal and orthodox
outlook.
Further Section 15(2) provides that the property inherited from the father would
revert to the heirs of the father when the Hindu female dies without issues. The section
also provides that the property inherited from the mother would revert to the heirs of the
father and not to the mothers heirs. The Legislative intent of conservation of property
becomes questionable here because if the object is to conserve the family property, the
property inherited from the mother should revert to the mothers heirs. A similar situation
occurs in the Christian families where daughters are denied property rights on the ground
that it would result into disintegration and fragmentation of family property.
The Judiciary has also played a significant role to widen further the scope of
Section 14 of the Hindu Succession Act 1956. In Tulsamma v. Sesha Reddy, the
Supreme Court observed that the shackles placed on the Hindu women over her property
have been broken by this Act and her status has been brought on par with men. In the
instant case the trial court decreed the suit on the ground that the appellant had a limited
interest in the property allotted to her by the respondent, her deceased husbands brother.
The appellant was entitled to maintenance out of the joint family property when she
leased out her property. The respondent filed a suit for a declaration that she had no
absolute right over the property. Instead her right was only a limited interest. The
contention of the appellant that she had become the full owner of the property by virtue
of Section 14 of The Hindu Succession Act 1956 was upheld by the Supreme Court.
The Supreme Court through its judgment in fact went beyond legislative
language. The Court said that Section 14 is wide in its scope and ambit. It says that any
property possessed by a female Hindu whether acquired before or after the
commencement of the Act shall be held by her as full owner. The words any property
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are large enough to include her stridhanam obtained immediately before the
commencement of the Act. The Hindu womens right to maintenance is not an empty
formality or an empty claim being concluded as a matter of grace and generosity, but it is
a right against property which flows from the spiritual relationship between husband and
wife and is recognized and enjoined by the customary Hindu law and had been strongly
stressed by Hindu jurists starting from Manu to Yajnavalkya. In the instant case the Court
further added that apart from right to maintenance a Hindu woman is also entitled to right
in the family property.
A widow is also entitled to maintenance out of the deceased husbands estate
which is in the hands of male issue or other coparceners. The principle enunciated by the
Supreme Court in Tulsamma case had been applied in Pratap Singh v. Union of India.
The petitioner challenged even the validity of Section 14(1) of the 1956 Act on the
ground that it is unconstitutional and violates Articles 14 and 15(1) of the Constitution
since it favored one section of the community namely the Hindu women. Relying on
Article 15(3), the court rejected the contentions. Article 15(3) enjoins the State to make
special provisions for women and children. It overrides Article 15(1) which prohibits
discrimination on the ground of sex, race, caste, religion etc. The Court added that
Section 14 is a special provision enacted for the benefit of Hindu women50. These two
cases show that the Supreme Court has utilized every opportunity to uphold the true spirit
and intention of the legislators.
Again in Komalamma v. Kumara Pillai and others the Supreme Court stated that
maintenance includes a provision for residence also. The purpose of giving maintenance
is that the lady can live in a manner in which she was accustomed hither to. The Court
was of the opinion that the concept of maintenance is therefore must contain provision for
food and clothing and the like. It also includes provision for a roof over her head which is
also a basic need. Provision for maintenance can be made by giving a lump sum amount
or property The Court went on to add further rights like giving her additional amount for
necessary expenditure over and above maintenance.
However the exclusion of women from a coparcenery goes against the
constitutional mandate of gender equality and it is left untouched by the 1956 Act. The
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Hindu women were denied the coparcenery status which was given only to the male
members of the Hindu Joint Family. For that reason alone women could not become
Karta53. Moreover the 1956 Act still perpetuate the centuries old gender bias because (1)
there is a general preference to agnates, (2) restricts female heir to demand partition of
the dwelling house (3) retention of Mitakshara coparcenery under Section 6 of the 1956
Act. Even the Hindu law committee had recommended for the abolition of Mitakshara
coparcenery and its concept of survivorship.
4. STATE AMENDMENTS TO HINDU SUCCESSION ACT 1956

Meanwhile some States took the progressive step to confer birth right to Hindu
women in the joint Family property. The Constitution permits Central and State
Governments to enact laws on matters of succession and hence the States can enact their
own variations of property laws within each Personal law. It is worth mentioning the land
mark amendments made by five southern States in India, namely Kerala, Andhra Pradesh,
Tamilnadu, Maharashtra and Karnataka. As per the law of these States except Kerala, in a
joint family governed by Mitakshara law the daughter of a coparcener shall by birth
become a coparcener in her own right in the same manner as son. The Andhra Pradesh
Hindu Succession (Amendment) Act 1986 thus raised the status of a daughter to that of a
coparcener in a Mitakhara Coparcenary. This has been eloquently reflected in its
Preamble itself where it is stated that the Constitution of India has proclaimed equality
before law as a fundamental right; whereas the exclusion of the daughter from
participation in coparcenery ownership merely by reason of her sex is contrary there to.
Same model was followed by Tamilnadu, Maharashtra and Karnataka by amending
HSA 1956. However these Acts did not apply to partitions effected prior to the coming
into force consequently there was no retrospective effect to the Act. Hence in Tamilnadu
it was found that properties were partitioned between coparceners immediately before
the Act came into force. The Law Commission has made a reference to it in its 174th
report as fraudulent transactions. Hence the Tamilnadu Act states that partitions effected
after 25.3.1989 will be deemed to be void although the Act came into force on 15.1.1990.
Another striking feature of the Act is that the married daughters can continue to be the
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members of the natal family. As per traditional law a married woman loses her connection
with the natal family. Her ties with the natal family were severed as a result she ceases to
be a member of that family and becomes a part of the husbands family. This novel
concept in fact is a peculiar feature unknown to Matrilineal or Patriarchal Joint families
in India.
However the Kerala State Government passed the Kerala Joint Family System
(Abolition) Act 1976. Kerala stood first in abolishing the right by birth in the Joint
Family there by eradicating the inherent discrimination existed in the matter of Hindu
womens inheritance rights. In fact Kerala has meticulously followed the Rau Committee
set up in 1994.The Kerala Legislature completely abolished the Joint Family System
under Section 3 of the Act which provides that no right to claim any interest in any
property of an ancestor during his/her life time. The members of the Joint Family cannot
claim any birth right in their property and that no Court shall recognize that right. Again
Section 7 repealed all customs or usage with respect to joint family property.
5.174TH LAW COMMISSION REPORT OF INDIA 2000

Since the States brought about amendments to the HSA1956 conferring birth right
to women in the joint family property Law Commission of India took the initiative and
submitted its 174th Report in 2000 pointing out that in the matter of property rights of
Hindu women, inequality and discrimination still exist in the 1956 Act. The Commission
hence made a recommendation for the amendment of the Hindu Succession Act 1956 in
order to provide Hindu women equal inheritance right in the ancestral property60. In the
Mitakshara coparcenary only the male members get property by survivorship. So the
Mitakshara system perpetuated patriarchal regime where in property descends only
though male line. Since women were not coparceners, they were not entitled to any share
in the ancestral property by birth. Thus law excluded women from participating in
ownership only on the ground of sex. This is nothing but an outright negation of her
fundamental right.
5. HINDU SUCCESSION (AMENDMENT) ACT 2005

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The object of amending the Hindu Succession Act 1956 is to strike at the root of
patriarchy that has been perpetuated through the Mitakshara coparcenery. Section 6 of the
Act excluded women from inheriting the ancestral property because women are not
coparceners. The Amendment Act 2005 crushed the exclusive citadel of male
coparcenery in order to give effect to the principle of equality enshrined in Part III of the
Indian Constitution. The gender discrimination in the Mitakshara coparcenery has been
completely wiped off by raising the status of female members of the Hindu joint family
equal to that of the male coparceners.
The Amendment made in 2005 was based on the recommendations made by the
Law Commission in its 174th Report on Hindu womens property rights. In fact the
Commission had taken the subject suomoto because of the glaring discrimination existed
in the Mitakshara coparcenery. It was observed by the Commission that since time
immemorial property laws were enacted for the benefit of men. Property rights had been
denied to Hindu women just to exercise control over them and to make them subjugated
and dependent on men. In the Joint family women were entitled only to maintenance. On
the contrary a son acquires birth right in the ancestral property since he is a coparcener.
The retention of the coparcenery excluding females perpetuated the traditional male
dominance in the matter of inheritance. The Commission pointed out this inequity and
said that it is in fact a fraud on the Constitution. On the basis of these findings the
commission recommended for the amendment of Section 6 of the Hindu Succession Act
1956.
It is pertinent to note the objects and reasons for the 2005 amendment of Hindu
Succession Act 1956.It is stated that the Hindu Succession Act 1956 has amended to
codify the law relating to intestate succession among Hindus. It is further stated that
social justice demands that a woman should be treated equally both in economic and
social justice. The exclusion of daughters from participating in coparcenery property
ownership merely by reason of their sex is unjust. The Commission has also taken into
consideration the changes carried out by way of state enactments in the concept of

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Mithakshara coparcenery. The Act brought about changes in the law of Succession among
the Hindus and gave rights which were till then unknown in relation to womens property.
AMENDMENT OF SECTION 6 OF HINDU SUCCESSION ACT 1956 ACT

Section 6 of the Hindu Succession Act 1956 deprives Hindu women the right to
inherit ancestral property. The property devolves only on male members. There is a
blatant violation of the equality principle guaranteed under the Constitution. When
partition of joint family takes place only male members get share of the family property.
Women get nothing. Approving the recommendations of the Law Commission of India,
Parliament enacted the Hindu Succession (Amendment) Act 2005. The following notable
changes are brought to Section 6 to remove the blatant discrimination. It provides that the
daughter becomes a coparcener because of her birth in the joint family just like the son68.
b.SECTION 6 OF THE 2005 AMENDMENT ACT
Section 6 of the amended Act 2005 has completely wiped off all the in equalities
in Section 6 of the 1956 Act at one stroke. The females in the joint families are elevated
to the status of coparceners having birth right in the ancestral property equal to that of a
son. Thus women are given coparcenery status. Some of the discriminations that existed
in sections 23 and 4 (2), have been omitted by the 2005 Act. It is another significant
achievement of the 2005 Amendment. The Northern States like Delhi, Punjab and
Haryana followed inheritance rules that are highly gender unequal. Here primacy is given
to male lineal descendants in the male line of decent and women come very low in the
order of heirs.
More over women get only a limited estate and lose the land on remarriage. The
Haryana government put forward to Central Government a memorandum stating that a
female instead of getting a share in her fathers property should get in her father-in-law
property. It is stated that on account of daughters share in the land there has been a large
scale fragmentation of holdings which Punjab, the granary of the country cannot
afford.Thus tenurial laws pertaining to agricultural land passed by different states
pertaining to agricultural land prescribed different rules for succession and all of them
remained valid.
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Another notable achievement of the 2005 Act is the inclusion of all daughters
especially married daughters as coparceners in the Joint Family Property. Section.6 of the
2005 Act removed the discrimination between married and unmarried daughters. It took
away the notion that after marriage the daughter belongs only to her husbands family. If
her marriage breaks down, she can now return to her natal home as a matter of right and
not on the displeasure and mercy of the relatives. This will certainly enhance her selfconfidence worth and give her greater bargaining power for herself and her children, in
both natal and marital families. Further giving daughters right to ancestral property will
also have an impact on changing the inherently unequal power equations between the
majority of the husbands and wives even today. A research done by Bina Agarwal has
shown that the incidence of violence decreases if women own immovable property.
The Law Commission has also addressed the discrimination inherent in the
Mitakshara coparcenery under Section 23 of the Hindu Succession Act . Law
Commission recommended for the omission of Section 23 from the 1956 Act. The
Commission advocated that daughters should get full right of residence in their parental
home. It was also viewed by the Commission that the bar on partition by female heirs
could take away the true spirit of coparcenery right. Therefore the Commission deleted
Section 23 in order to strengthen the coparcenery rights of the females.
Consequently Section 23 of the 2005 (Amendment) Act was omitted to confer all
daughters (including married daughters) the same rights as sons to reside in or seek
partition of the parental dwelling house. By deleting Section 23 of 1956 Act, the
amending Act (2005) removed the last remnants of discrimination against women. The
objective of the section is to prevent the fragmentation of a family dwelling house at the
instance of a female heir to the prejudice of the male heir. This section reflected one of
the ancient Hindu law tenets that treasured the dwelling house of the family an impartible
asset. By the omission of section 23, the daughter can remain a daughter forever and she
will not lose her relations with her natal family even after marriage.
Similarly the Amendment Act (2005) removed the second discrimination between
women themselves on the basis of their marital status. The section was based in favor of
unmarried daughters and granted them the right to residence in the dwelling house but
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only till they were unmarried80. It is pertinent to note here the Supreme Courts path
breaking decision in Savitha Samvedi v. Union of India as early as in 1997. It was held
that the differentiation based on marital status is wholly unfair, unreasonable and gender
biased, and violates Article 14 of our Constitution. The eligibility of a married daughter
must be placed on par with an unmarried daughter so as to claim the benefit referred to in
the Railway Ministrys circular restricting the eligibility of married daughter of the
retiring official for regularization. It is worth quoting the common saying that a son is a
son until he gets a wife; a daughter is a daughter throughout her life. The apex court
hence passed an order issuing direction to the Railway Ministry to grant regularization of
the Railway Quarter in favor of the first appellant, the married daughter.
DELETION OF SECTIONS 4(2) AND 23 OF HSA 1956

The omission of Section 4(2) of The Hindu Succession Act 1956 is another
achievement of the 2005 amendment Act. By the deletion of Section 4(2) of The Hindu
Succession Act 1956, a highly discriminatory clause of the Hindu Succession Act 1956
has been removed. Now woman also has inheritance rights over agricultural lands just as
men. The third achievement of the Amendment Act 2005 (The Hindu Succession Act) is
the omission of Section 23 of the 1956 Act thereby giving all daughters (married or not)
the same rights as sons to reside in or seek partition of the family dwelling house. Section
23 denied residential rights to married daughters in their parental home. Unmarried
daughters are given residence rights but could not demand partition. The 2005 Act also
deleted Section 4 of 1956 The Hindu Succession Act which barred certain widows of
predeceased sons, from inheriting the deceaseds property, if they had remarried. Now the
disability is removed and they can also inherit.
An analysis of the Courts verdicts would reveal that the courts have also favored
the patriarchal concept of male preference over females in the matter of dwelling house.
The Kerala High Court held that as long as male heirs whether alone or in plurality
choose to live in the dwelling house, female heirs are not entitled to seek partition84.
Again the Madras High Court held that when there is just one male heir, the females
heirs cannot seek partition until that male heir decides to do so. The court added further
that in such a case the right to demand partition vested in the female heir vide section 23
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of the Act would be permanently postponed and ultimately frustrated. Such contingencies
would cause great hardship to the female heirs, but cannot be avoided85 according to the
Bombay High Court the section becomes defunct when there is only a single male heir, as
the property ceases to be a joint family property.
It is strange to see that the Supreme Court refused to declare it as unconstitutional
in spite of the discrimination on the basis of sex. It was quite obvious that the female heir
just because of her being female heir is not allowed to claim partition. Even though grave
injustice has been done to woman and a Section that was enacted to empower them has in
fact been used to subjugate them. In spite of the liberal opinions expressed by various
High Courts, the Supreme Court in Narasimha Murthy v. Susheelabai declared that
though in the words the male heirs choose to divide their respective shares suggest that at
least two such male heirs must exist and decide not to partition, the dwelling house in
which the right of the female heir is postponed and kept in abeyance until the male heir or
heirs of the Hindu intestate decides to partition it, it does not necessarily lead to the only
in evitable conclusion that the operation of Section 23 must stand excluded in the case
of Hindu intestate leaving behind his/her surviving only a son and a daughter.
It is pertinent to note here that the Honorable Supreme Court took note of the
hardships of only the male heirs claim partition. It failed to see the opposite side. The
consequence of this ruling is that a woman cannot claim partition of the property that
belongs to her even if she wants to live separately. The patriarchal Court refused to
declare it as unconstitutional despite the discrimination on the basis of sex female heir is
denied the right to claim partition because of her gender alone. A section that was enacted
to empower them has in fact been used to subjugate them.
Several scholars contended that Section 23 was per se discriminatory as it provides male
heirs with the absolute right to seek partition while making right of female heirs
contingent on the right of male heirs. The object is to prevent the fragmentation of a
family dwelling house at the instance of a female heir to the prejudice of the male heirs.
The ancient Hindu law considered the dwelling house as unimpartible asset. The Courts
are also giving verdicts favoring this strong patriarchal concept.

16

The Kerala High Court held that as long as male heirs whether alone or in plurality
choose to live in the dwelling house, female heirs are not entitled to seek partition. The
Madras High Court has held that when there is just one male heir, the female heirs cannot
seek partition until that male heir decides to do so. The Court further added that in such a
case, the right to demand partition, vested in the female heir vide Section 23 of the Act
would be permanently postponed and ultimately frustrated. Such contingencies would
cause great hardship to the female heirs, but cannot be avoided. According to the Bombay
High Court, the section becomes defunct when there is only a single male heir, as the
property ceases to be a joint family property.
The 2005 Amendment meticulously carried out the changes that are recommended
by the Law Commission in its 174th Report. The omission of discriminatory provisions
removed the disabilities of the women in the matter of inheritance and have been
conferred a status equal to that of men as envisaged under Article 14, 15 and 16 of the
Constitution. Moreover when HSA was amended by the 2005 Act it was thought that
Hindu women would start litigation claiming their right in the coparcenery property. As
in the case of Christian women only very few women came forward asserting their rights.
So Sheela Devi [Sheela Devi v.Lalchand and Anr] was one of them. The issue before the
Court was whether the 2005 Act would supersede the old Hindu Law? The Court
observed that the Parliament with a view to confer right upon the female heirs even in
relation to the joint family property enacted Hindu Succession Act2005.The State of
Andhra Pradesh had already enacted the same provision in 1987 itself. As per the State
Act of 1987the daughter acquires right by birth in the Joint Hindu Family governed by
Mitakshara Law.
Again in Sekar v.Geetha & Ors the Supreme Court made it clear that the
Parliament intended to achieve the goal of removal of discrimination not only as
contained in Section 6 of the Act but also conferring an absolute right to a female heir to
ask for a partition in a dwelling house wholly occupied by a joint family as provided for
in terms of Section 23 of the Act. It is also apt to look into the observation made by the
Orissa High Court in Pravat Chandra Patnaik and Ors v. Sarat Chandra Patnaik &
17

Ano. In the instant case the Court highlighted the intention of enacting the 2005 Act. The
Court observed that it is to remove the discrimination contained in Section 6 of the Act by
giving equal right in the Hindu Mithakshara coparcenery property as the sons have. So a
daughter gets the right of a coparcener from the date the amended Act came into force
i.e.9.9.2005. The Court also made it clear that a daughter gets the rights of a coparcener
from 2005 even though they might have been born earlier. Thus there is a gradual
development in conferring property rights to Hindu women. However it remains as a
paper tiger and the implementation is very poor.
SOURCE OF ACQUISITION OF PROPERTY BY FEMALE UNDER HINDU
LAW A DETERMINING FACTOR
On the basis of the source of the acquisition of the property, the Act discriminates
in evolution between male and female property. With respect to devolution of male
separate property, irrespective of whether he inherits from his parents or his wife, the Act
lays

own uniform rules of succession with regard to scheme of succession and

determination of heirs but in case the of female dying intestate, the heirs are determined
on the basis of the source from where she acquired the property. Thus the basis of
inheritance of females property is the source from where the property has come in her
hand. Accordingly for determining the scheme of succession and her heirs, property
acquired by her could be classified into two types : (1) property in general and (2)
property inherited from her parents or husband or father-in-law.
i.PROPERTY IN GENERAL
General rule of inheritance is in favour of consanguinity. Hindu and Parsi law to
an extent also recognizes the relationship arising out of affinity. Under Hindu law the
property of a male Hindu dying intestate devolves also on the widow of pre-ceased son or
predeceased sons son and under Parsi law the widower of predeceased daughter have
right in his father-in-laws property. But with respect to Hindu females the statutory
provision goes much step ahead by making all relations of husband to be eligible to
inherit from his wife.

18

General rules of succession guide only when property is acquired by her in any
mode other than by inheritance in parents or husbands property. The provision groups
the heirs into five categories comprising of sons, daughters, husband, children of
deceased issues under the first entry, heirs of husband under the second entry, father and
mother in the third entry, heirs of father in the fourth entry and heirs of mother in the last
entry. A son or a daughter also includes adopted sons and children of any predeceased son
or adopted son but not illegitimate children and step-children as stepchildren fall in the
category of the heirs of the husband. The Act lays down that the heirs of husband would
be preferred to parents of the deceased in her general property. If a Hindu woman dies
issueless with husband being alive at the time of her death the husband takes all her
property with no share reserved for her own father or mother as they fall in next order of
hierarchy. On the contrary, in case of a male dying intestate, his separate property
devolves on Class I heirs comprising of his wife, children and share is also reserved for
his mother. Rules regarding devolution of her property has to be read in conjunction with
other provision which uniform order of succession to her property and regulates the
manner of its distribution.
The old, patriarchal attitude that the Hindu woman after marriage completely loses
her identity and assimilates with the identity of her husband is reflected under the Act.
The Hindu woman after marriage is considered to become completely part of her
husbands family uprooting herself from her parents family to the extent that in her
property, in absence of her children and her husband, the heirs of her husband have
preferential right over her own parents. It is ironical that heirs of the husband are
preferred to intestates own parents. The moment the Hindu woman gets married the
legislative obsession of her transportation from her natal family to matrimonial home and
superiority of her in-laws over her blood relations is clearly reflected in making the entire
clan of the husband her heir by relegating the parents to an inferior placement .
Further, for the purpose of ascertaining the heirs of husband, it is to be deemed as if
her property immediately on her death devolves on her husband who also dies
immediately after her leaving his heirs who would be inheriting the property once
19

possessed by such wife. The list of heirs of males dying intestate is divided into four
classes with 16 members in Class 1, many other members in class II and then his
innumerable number of blood relations connected to him by any generation among
agnates and cognates, thereby making the list so exhaustive that leaves a rare possibility
for parents to inherit the property of their own daughter. The heirs of the husband have to
be ascertained not at the time of the death of the husband but at the time of wifes death.
The parents get their daughters property only when there is no heir of husband capable
of inheriting the property is present. Wife may never have seen her husband's close or
even a distant relative, but in the event of her death, her parents who bring her up are
asked to take a backseat and the relatives of the husband who may never be on scene
before her death can legally claim her property. Once again, concepts of gender equality
give way to patriarchal considerations that treat women as extensions of their husbands
by favoring their husbands' heirs.
All the more, in absence of father and mother the property then passes to the heirs
of her father and not to the heirs of mother neither is equally divided between heirs of
father and heirs of mother. When property is to be inherited by heirs of father it is
presumed that her property now belonged to him and he died intestate leaving that
property for his heirs to inherit the property. Again the rules of devolution of property of
male dying intestate come into picture bringing in four different classes of innumerable
heirs. It creates a fiction for ascertaining heirs by treating it as fathers or husbands
propertybut that cannot make property her fathers or husbands property. This leaves
utopia for next category of heirs i.e., heirs of the mother to take in the property. The male
legislators psychology to consider themselves superior to women is further echoed when
the property in absence of her parents goes preferentially to heirs of her father then to
heirs of her mother. Granting heirs of the father favourable rights to inherit and granting
secondary status to the heirs of the mother to get rights in the property demonstrates the
superior status being given to male rather than female in inheriting property expressly
discriminates on basis of sex.

20

But under other personal laws uniform scheme of succession is prescribed

irrespective of sex of the person dying intestate. Thus woman under different statutory
laws, except Hindu law, are allowed to maintain her identity irrespective of her marital
status. No other personal law gives statutory preference to the relatives of husband over
females own blood relatives. One of the reasons for not preferring parents of the
deceased married Hindu female in comparison to heirs of her husband could be that
during those days when HSA, 1956 was framed and enforced the psychology of Hindu
father considered it great sin to take back anything from his daughters matrimonial
home. After giving daughter to the son-in-law, he averted going to her house, never took
his food even water in her house, so that the purity was maintained. When drinking water
in his daughters matrimonial home was abhorred to, the question of taking her property
on her death was out of question. But now the society and also the psychology has
change thus accordingly the discriminatory law should change. This unique feature of
Hindu law giving preference to relatives of husband in wifes property appears to be
devoid of any reason and wisdom. Laying down different rules of succession for
unmarried and married daughter which laws are fundamentally different is clearly
discriminatory and illogical.
Sita Ram S. Jajoo expressed his anguish on Hindu Code Bill framed by the B.N.
Rau Committee in the following words the conservative members of the Parliament
succeeded in ensuring the tyranny of the majority by slipping in Section 15(2) to the final
form of the 1956 Act when no trace of it is found in the original Bill.
In fact, the Hindu Succession Bill, 1954, as originally introduced in the Rajya
Sabha did not contain any clause corresponding to such an exception. The original Hindu
Succession Bill (Bill No 13), 1954, provided for six separate categories with husband
being placed under the second category but the amended bill (Bill No 13B) of 1954,
placed the husband along with the children, in the first category. The scheme under the
Hindu Succession Bill (Bill 13) of 1954 was as follows: (i) firstly upon the children,
including the children of any predeceased son; (ii) secondly, upon the husband; (iii)
thirdly, upon the mother and father; (iv) fourthly, upon the heirs of the husband; (v)
21

fifthly, upon the heirs of the mother; and (vi) lastly, upon the heirs of the father. The
scheme under the amended Hindu Succession Bill (Bill 13B) of 1954 was as
follows: (i)firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (ii) secondly, upon the mother and the father;
(iii) thirdly, upon heirs of the father; (iv) fourthly upon the heirs of the mother; and (v)
lastly upon the heirs of the husband. Thus blood relations of the wife were considered to
be closer than that arising because of affinity however the 1956 Act promoted the heirs of
husband to category (b) and relegated the blood relations to an inferior placement. It
appears that Hindu Succession Bill (Bill 13B) of 1954 was more justified and reasonable
in giving due recognition to her own parents than to distant relatives of her husband from
whom she in turn will never be inheriting and probably may never have met.
Experiences have showed that a Hindu male having complete power of
testamentary disposition of his separate property generally made a will in favour of other
male members of family thereby taking away or reducing the share of Hindu woman
which otherwise would have devolved on her if he had died intestate. Under Muslim law,
the propositus could make a will of maximum 1/3rd share of his property, rest share is
kept for his heirs. Even after being aware of the prevailing problems the legislators did
not lay down any provision with respect to imposing limitation on the Hindus
testamentary power of disposition in separate property under HSA, 1956.
On a question by MP Mr. Ravneet Singh to the Minister of Law and Justice that
whether the government was contemplating to amend the Hindu Succession Act, 1956, to
place limitation on testamentary disposition with respect to his self- acquired property so
that womens rights in property are not denied, the ministry answered that there was no
proposal under consideration to further amend the Hindu Succession Act, 1956 in respect
of devolution of property of male as well as female dying intestate as equal rights are
given to both sons and daughters as class I heirs40. Placing no limitation on the
testamentary disposition of property thereby impliedly allowing Hindu male to bequeath
his property to other male members of the family which otherwise would have devolved
on female heirs on his death and at the same time making no attempt to remove the
22

discriminatory rules of succession with respect to females results in further deteriorating

the position of women vis--vis men in so called society striving to achieve equality
between the sexes.
ii.PROPERTY INHERITED FROM FATHER OR MOTHER AND HUSBAND OR
FATHER-IN-LAW
Source of inheritance by a deceased Hindu male intestate not being considered for
devolution of males property but considered only for a deceased female Hindu dying
intestate constitutes gender discrimination. HSA, 1956 lays down uniform rules of
succession for males irrespective of the source of acquisition in his hand but lays down
different scheme for devolution for females property depending upon her mode of
acquisition of property - general and special. Special rules of succession carve an
exception to the otherwise general rules of succession. Special rule comes into force only
when the property is inherited by her from her parents or husband or father-in-law and
dies intestate without leaving any child. The scheme of succession and the heirs change in
such exceptional devolution.
Generally once the property is inherited, it becomes the separate property of the
person inheriting it and devolves on his heirs but under HSA, 1956 devolution of such
property with respect to women which she inherits from her parents or husband and
father-in-law, in absence of son or daughter, reverts on the heirs of the person whose
property she has inherited i.e., to the heirs of the father, but not to the heirs of the mother
and to the heirs of the husband respectively thereby making her only the temporary owner
of the property during her lifetime. It is then assumed that the property belonged to the
father/husband which then devolve on the heirs of the father/husband respectively and not
to her heirs. If she inherits property from her father/mother and dies issueless leaving
behind only husband, the property will still not pass to her husband but will revert to her
fathers heirs41. Husband of a woman get a share in her property, which she has inherited
from her father/mother, only when she dies leaving behind any issue or children of her
predeceased issue.

23

One more notable point is that only property inherited from her parents or husband
and father-in-law, in absence of her children, leads to different scheme of succession and
does not include sources of succession from a brother, sister, uncles, aunts or
grandparents. The exceptions to the general rule are motivated by a clear and traditional
desire that the property shall not pass from family to family merely by a female's death
intestate.
The statutory provision also provides for devolution of property of female,
governed by marukattayam and aliyasthana law. Under this law if she inherits property
from her husband or father-in-law, in absence of her child it devolves on the heirs of the
husband. The property inherited by such female from her father or mother does not form
an exception but devolves by general rule of succession wherein it devolves firstly on her
sons, daughters including children of her predeceased child and mother, secondly upon
her father and the husband, thirdly upon the heirs of the mother, fourthly upon the heirs
of the father and lastly upon the heirs of the husband.
Exception with respect to devolution of female Hindu is confined only to property
'inherited' by her that too one she inherits only from her father, mother, husband and
father-in-law and do not affect the property acquired by her by gift or by device under a
Will of any of them43 or by receipt of property from them during their lifetime. Thus,
property received by a daughter from her mother through a Will orgift46 would be treated
as her general property and not to be inherited property which will pass by general rules
of devolution.
Such provisions depict that property continues to be inherited through the male line
from which it came either back to her father's family or back to her husband's family.
Basis for reverting the property back to the source was to prevent such property passing
into the hands of persons to whom justice would require it should not pass. The source
from which she inherits the property is always important and that would govern the
situation otherwise persons who are not even remotely related to the person who
originally held the property would acquire rights to inherit that property48. Sustaining the
unity of the family and for that the entitlement to the property carved out in favour of
closer relations than remote is the principle behind the rationale. If such property is
24

allowed to be drifted away from the source through which the deceased female has
actually inherited the property, the object of placing exception would have been
defeated50. Placing such exceptions, were intended only to change the general order of
succession and not to eliminate the other classes of heirs. But if this rationality with
regard to the property inherited by a married female Hindu from either of these two
sources is accepted the same rationality appears to be absent from properties inherited by
a Hindu male whether from his wife, mother, father or otherwise which then appears to
be arbitrary and discriminatory. There is discrimination apparent in the principle
recognised in Section 15(2) of the Act in it attaching significance to the source of the
estate of a Hindu woman dying intestate though elsewhere in the Act there is no
corresponding provision for the Hindu man.The constitutional validity of such a
provisions when challenged in Sonubai Yeshwant Jadhav v. Bala Govinda Yadav and
Ors. on the ground that it discriminates between "the heirs of husband" and "heirs of
wife" the court while ruling in its favour, held that recognition and reference to the heirs
of the husband was just a logical necessary step to continue that unity in which the female
had merged by marriage and where she was an integral part of such a family. It is a rule
of devolution that begins to operate when "a wife" -- as distinct from mere female dies
with regard to inherited property from husband, heirs being described as husband's heirs
that are made to succeed.
Arguments given by the court that on marriage woman is regarded as a member of
her husbands family appears at first to be convincing but cannot be sustained when
viewed in comparison with other personal laws. No other personal laws superimposes her
relationship with her parental family with that of her matrimonial family in devolution of
her property nor classifies the heirs on the basis of source of the acquisition of her
property by way of inheritance from her parents or from her husband. Recently the Single
bench of same high court in Mamta Dinesh Vakil v. Bansi S. Wadhwa (which is
referred to Division bench) has held that the distinction in the rules of inheritance and
succession governing simplicitor Hindu males and Hindu females is distinctly hit by the

25

principle of equality embodied in Article 15(1) of the Constitution as being a

discrimination only on the ground of sex.
Such provision came to be incorporated on the recommendations of the Joint
Committee of the two Houses of Parliament giving the reason in Clause 17 of the Bill,
that "While revising the order of succession among the heirs to a Hindu female, the Joint
Committee have provided that properties inherited by her from her father reverts to the
family of the father in the absence of issue and similarly property inherited from her
husband or father-in-law reverts to the heirs of the husband in the absence of issue. In the
opinion of the Joint Committee such a provision would prevent properties passing into
the hands of persons to whom justice would demand they should not pass.
The intent of the legislature is clear that the property, if it originally belonged to
the parents of the deceased female, should go to the legal heirs of the father and if it
originally belonged to her husband/father-in-law should go to her husbands heirs. She is
perceived as having no identity of her own as the heirs are not described as brother, sister,
her brother-in-law etc., but as heirs of her parents and heirs of her husband. This
reversion of the once-inherited-property back to her fathers or her husbands heirs shows
a desperateness on the part of the legislature to treat her only as a temporary occupier.
Neither Muslim law nor Indian Succession Act, 1925 differentiate, on the basis of source
of acquisition, between rules of devolution of property of male or female dying intestate.
When a Muslim male dies his widow along with his father, mother apart from others,
inherit as sharer and when a female Muslim dies irrespective of her mode of acquisition
of property, her husband along with her own father and mother inherits as sharers in her
property. The basis of her procurement of property does not change the scheme of
succession giving preference to relatives of the husband than to her own parents in
property not inherited from her parents or her husband .
Marriage under Indian Succession Act, 1925 does not give any interests or power
in the property whom he or she marries . The reason of inserting such a provision was to
get rid of the principle, so far as property is concerned, that the husband and wife are one
person in law. Before passing of Indian Succession Act, 1865 Common law governed the
people of India excluding Hinuds, Muslims, Sikhs and Jains but applied to Europeans,
26

Indian Christians, Jews Armenians and Parsis. Common law placed certain restrictions on
women belonging to these religions regarding possession and alienation of property and
with respect to real estate the husband acquired by marriage an interest in the property
of the wife and during marriage wife could not alienate the property without the consent
of her husband. This disability was removed by ISA which established the principle that
by marriage the husband does not acquire any rights in the property of wife.
Rules of devolution of property, whatever be the mode of gaining of property, of both
males and females dying intestate, are uniform for Christians under ISA, 1925. Part of the
property first devolves on the spouse and then is divided among other relations of the
deceased wherein preference is first given to the lineal descendants, then to the father,
then to the mother, brother, sister. Even when a Christian female dies intestate, property
acquired from whatever source, devolves by reserving a share to her husband which then
passes to her children. In absence of her children it will devolve on her father in whose
absence would further devolve on her own mother, brother and sister.
Even the Portuguese Civil Code, 1867 does not discriminate on the basis of
accumulation of property by male or female for scheme of devolution of property. The
Portuguese Civil Code prescribes for community of property which consists of all
movable property of both the spouses on date of marriage and all property acquired
during marriage, gets divided equally between them on dissolution of marriage, be it by
divorce or death. The Code does lay down that the property what one inherits does not
automatically become the community property and on death of such person devolves on
firstly on his/her descendants, secondly on ascendants, thirdly on brothers, fourthly on
surviving spouse in the hierarchal order. The parties in contemplation of their marriage
may contract to make a gift of all or part of their inheritances to the other spouse. By
retaining the source of acquisition for determining the heirs of female Hindu the
legislature perpetuates the old patriarchal view that the ownership rights to women cannot
be granted full but must be somewhat controlled. Why should the source of acquisition be
a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man

27

and when none of other statutory personal law differentiates on the basis of mode of
acquisition of property between sexes?
iii. SELF-ACQUIRED PROPERTY - A GREY AREA
By the Act of 1956, a Hindu woman is considered to be capable of holding her
separate property and owning it in her own right. She has ownership rights in such
property by way of inheritance or by acquisition. Inheritance may be by receiving a share
in her fathers property or her husbands property and acquisition may be by gift, will,
purchase, prescription or her self-acquired property acquired by way of her own skill. All
self-acquired property is the separate property but not vice-versa. Separate property apart
from including self-acquired property also includes a share by way of inheritance, gift, by
will or purchase. Yet the enactment of 1956 does not differentiate between separate
property and self-acquired property. The Act lays down same general rules of succession
for both separate and self-acquired property of female dying intestate wherein it first
devolves on her children or children of her predeceased child and husband then to the
second class i.e., to her husband's heirs. The relations or her husband are given preference
to her own parents. The legislators did not contemplate that Hindu women would in later
years to have self-acquired property. With the growing demands of time, it is generally
parents who provide all facilities to girl child for making her capable of earning her own
income but when it comes to devolution of such property preference is given to husbands
relatives rather than her own parents.
The self- acquired property of the female intestate cannot be traced back to either to
the paternal or in-laws family. As the separate property devolves firstly on her children or
children of her predeceased child and, husband, there being no difference between
separate and self-acquired property, the self-acquired property of a Hindu married female
dying intestate, also devolves on her children and husband. In absence of her heirs in the
first category, the property would devolve totally upon her husbands heirs who may be
very remotely related as compared to her own fathers family i.e., her own near blood
relations e.g., her father or mother do not inherit in presence of distant relations of her
husband who inherit as his heirs . A Hindu female who would otherwise hope to succeed
28

to an estate of another Hindu female as an heir would receive a setback from the distant
relatives of the husband of the deceased not even known to her or contemplated by her to
be her competitors except upon claiming precedence as class II heirs under Section 8 or
as preferential heirs under section 15(1).Giving preference to husbands heirs may to an
extent be justified in separate property on ground that after marriage she becomes part of
her husbands family but giving them preferential rights than to her parents in her selfacquired property is not justified particularly when she may not have acquired property
with the support of her husband or his family member.
It may be noted that the general rule of succession goes in favour of blood
relations only, with Hindu and Parsi being exceptions. No other succession law in India,
gives statutory preference to the in-laws of a married woman over her own blood
relatives. Even Muslim law lays down uniform rules of succession irrespective of sex of
the intestate giving primacy the intestates blood relatives. Similarly even under Christian
and Parsi law blood relatives are preferred. Further the absurdity is that same rule applies
to Hindu male i.e., when he dies, his blood relations are given preference and his wifes
relatives do not even figure in the order of succession despite the manner in which he
may have acquired the property but when she dies, the property can be claimed by even
distant relative of the husband and not by her own parents. A woman would prefer her
blood relations to her husbands relatives to be her heirs and this provision goes against
the reciprocity of inheritance as the entire group of husbands heirs howsoever remote
have been made her heirs but she is not entitled to inherit from them. With more and
more women becoming economically independent, socio-economic changes warrant
corresponding changes in the law on the subject as well.
Legislative and Judicial advances recognizing self-acquired property of Hindu
female
1) Law Commission of India 207th Report61 on self-acquired property of Hindu female
dying intestate
In view of the vast changes in the social milieu over the past few years when women
have taken strides in all spheres of life acquiring property earned by their own skill, (a
29

situation did not seem to have been in the contemplation of legislators when the Act was
initially enacted), the Law Commission of India in 2008 came up with three alternative
options namely:
1. Self-acquired property of a female Hindu dying intestate should devolve first upon the
heirs of her husband.
2. Self-acquired property of a female Hindu dying intestate should devolve first upon her
heirs from the natal family.
2. Self-acquired property of a female Hindu dying intestate should devolve equally upon
the heirs of her husband and the heirs from her natal family.
With respect to first option, it would mean to continue the status-quo but socio-economic
changes deserve to be recognized and corresponding changes should be reflected in the
law on the subject as well. Speaking about the second option, the Commission was of the
view that most married women would prefer that their parents should be the more
preferred heirs to inherit her property if her children and husband are not alive. When a
man dies intestate, his wifes relatives do not even figure in the order of succession, so
parity should be made by applying the same rules as applicable to males property.
Accordingly S. 15(1) would have to be amended to specify the general rules of
devolution, which would apply not only to self-acquired property by a women but also to
other property acquired through her family, gifts, etc. and only proviso which would then
be needed would be to property that a woman.
acquires from her husbands family. As regards the third option of equally dividing her
self-acquired property between her natal family and spouses family, the Commission
observed that the truth is that in spite of her closeness to, and dependence on, her natal
family, her relations with her husbands family are not separated and uprooted in entirety
but she continues to be a member of her husbands family.
The social ethos and the mores of our patriarchal system demand that the existing system
should not be totally reversed lest there may be social and family tensions which may not
be in the overall interest of the family as a whole and, as such, ought to be avoided.
Taking note of the amendments made to the effect that women have been entitled to
inherit property from her paternal side as well as from husbands side, the Commission
finally suggested bringing in balance by giving equal rights to her parental heirs along
30

with her husbands heirs to inherit her property. It has proposed that in case a Hindu
woman dies intestate leaving her self-acquired property with no heirs, as mentioned in
clause (a) of Section 15, the property should devolve on her husbands heirs and also on
the heirs of her paternal side. Accordingly it has suggested the addition of S. 15(2)(c) in
HSA, 1956 to include:
(c) if a female Hindu leaves any self-acquired property, in the absence of husband and
any son or daughter of the deceased (including the children of any pre-deceased son or
daughter), the said property would devolve not upon heirs as mentioned in sub Section
(1) in the chronology, but the heirs in category (b)+(c) would inherit simultaneously. If
she has no heirs in category (c), then heirs in category (b) +(d) would inherit
simultaneously.
Supreme Court on Self acquired property of Hindu female
Even though the Law Commission in 2008 in its 207th Report had suggested the
devolution of self-acquired property of women dying intestate granting rights to both her
natal and matrimonial family, the Supreme Court did not take the recommendation
earnestly when the issue of devolution of self-acquired property of Hindu female for the
first time came before the Supreme Court in 2009 in Omprakash v. Radhacharan. The
husband of the woman died just after three months of their marriage so the woman was
driven out of her matrimonial home immediately after the death of her husband. She
never stayed in her matrimonial home after that and came to her parental home where she
was given education. She was not lent any support from her husband's family and all
support had come from her parents. She got employment and died intestate leaving
behind various bank accounts with also huge sum in her provident fund account. On her
death, her mother claimed for the property and later deceaseds brother joined the mother
which was opposed by the respondents who were the sons of sister of deceaseds
husband.
The issue was whether sub-Section (1) of Section 15 of the Hindu Succession Act,
1956 or sub-Section (2) thereof would be applicable in the facts and circumstances of this
case. The court accepted that the make any distinction between a self-acquired property
and the property which she had inherited. It refers to a property which has vested in the
31

deceased absolutely or which is her own. Even after accepting that her in-laws had no
contribution in its making and is a hard case, the court did not did not invoke a different
interpretation of a statutory provision. It vehemently held it is now a well- settled
principle of law that sentiment or sympathy alone would not be a guiding factor in
determining the rights of the parties which are otherwise clear and unambiguous.
Settling all the controversy regarding the devolution of interest in the self-acquired
property of the woman, it opined that the self-acquired property of a female would be her
absolute property and not the property which she had inherited from her parents therefore
Sub-section (1) of Section 15 of the Act would apply and not the Sub-section (2) thereof.
The judgement going by strict interpretation of a statutory provision views the man's
estate and the woman's estate through different spectacles giving less autonomy to her
over her property in comparison to her male counterpart. The Supreme Court based on
justice, equity and good conscience could have taken a more progressive and sympathetic
view, could have addressed the issue of gender discrimination as is very clear in the
statute rather than just terming it to be a hard case. Supreme Court under Article 142 of
the Constitution is empowered to go beyond the laid rules for doing complete justice and
examples abound when courts have deviated from rigid provision. Here also the Supreme
Court ought to have laid down precedent recognizing womens power, autonomy and
devolution of her self-acquired property. Justice demands that the blood relations of the
woman be given preference. The changing socio economic scenarios and differing ground
realities call for delivering justice with open eyes as it is not enough if justice is done,
justice should also appear to have been done. The gender difference ought not corrupt the
ideal of equality and the law should not stand in the way of giving justice to woman
which has been denied to her.
Report of National Commission for Women (NCW)
NCW has suggested for deletion of rules of succession of female dying intestate and for
amending the existing rules for devolution of male dying intestate to make it general and
uniform to be applicable to any person irrespective of his sex. It has suggested the
inclusion of following: General rules of succession - The property of a Hindu dying
intestate shall devolve according to the provision of this chapter - a) Firstly, upon the
32

heirs, being the relatives specified in Class I of the schedule; b) Secondly, if there is no
heir of class I, then upon the heirs, being the relatives specified in Class II of the
schedule; c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of
the deceased; and d) Lastly, if there is no agnate, then upon the cognates of the deceased.
4. Hindu Succession (Amendment) Bill, 201364 for Self-acquired property of Hindu
female
Despite the fact that the Law Commission had suggested65 for devolution of selfacquired property of Hindu female to devolve equally on her parental heirs along with her
husbands heirs in absence of her children and husband, the legislators did not go ahead
by incorporating the suggestion by way of amendment in the Hindu Succession Act,
1956. The Supreme Court also did not take note of the aforesaid suggestion of the Law
Commission and gave a strict interpretation to the words of the statute in Omprakash66
case. After 5 years of Law Commissions suggestion the legislators have finally
awakened to look into the devolution of self-acquired property of Hindu female and
recently proposed Hindu Succession (Amendment) Bill, 2013 for amendments with
regard to self-acquired property of women in the parent Act. Instead of abiding by the
207th Report of Law Commission of granting equal rights in her property to both her
parental heirs and husbands heirs in absence of her children and her husband, it proposed
to give first preference to her parental heirs over her husbands heirs. It also proposes to
define self-acquired property expressly to include both movable and immovable
property acquired by her by her own skill and labour which is to be incorporated in the s.
3 of the Act dealing with definition of different terms as used in the Act. The Bill
proposes to add clause (k) after clause (j) in section 3 of the Hindu Succession Act, 1956,
namely:
(k) self-acquired property means any property including both movable and immovable
property acquired by a female Hindu by her own skill or exertion.
Further, it sought to make changes in Section 15 of the Hindu Succession Act, 1956 so
that first preference is given to the parental heirs of the wife over the husbands heirs in
devolution of her self-acquired property in absence of her children or her husband. It
proposed the addition of clause (c) in sub-Section (2) of Section 15 namely:33

(c) if a female Hindu dies intestate, her self-acquired property, in the absence of husband
and any son or daughter of the deceased (including the children of any predeceased son
or daughter), shall devolve, not upon the heirs as referred to in subsection (1) in the order
specified therein, but in the following manner:
(i) firstly, upon the mother and the father of the female;
(ii) secondly, upon the heirs of the father of the female;
(iii) thirdly, upon the heirs of the mother of the female; and
(iv) lastly, upon the heirs of the husband of the female..
By this proposal the Bill to an extent tries to bring in similarity between devolution of
property of Hindu men and Hindu women. As in case of men the property passes to Class
I heirs comprising of his children, widow, children of predeceased children, mother and
widows of predeceased son or grandson and in their absence to Class II comprising of his
father, brothers and sisters, his grandfather and grandmothers and others with no shares
reserved for her wifes relatives in any order of succession, the proposed amendment
gives first preference to the parental heirs of the wife over the husbands heirs to inherit
the self-acquired property of a women dying intestate.
II. INHERITANCE RIGHTS OF MUSLIM WOMEN UNDER THE MUSLIM
PERSONAL LAW

Muslim women rights have been a topic of discussion ever since the Constitution came
into force in 1950. Islamic law (Shariah) is considered by many as patriarchal and
oppressive to women. However the Quran has addressed womens issues fourteen
hundred years ago by creating some reforms to improve the status of women though these
reforms do not seem to be practiced in Muslim society today. Though Islam as revealed
to the prophet Mohammed is not oppressive to women its interpretation enacted in the
family law, and every day living is patriarchal.
In fact the oppression of Muslim women is due to the conservative readings of
Shariat which also include gender discriminating customary norms that are presented as
gods immutable words. Muslim feminists trace the source of womens oppression to the
same Shariah laws which interpret the divine laws wrongly Further Islamic law is
saturated with pro-patriarchal interpretations. Although the status of women improved
during the time of the prophet it was only short lived Muslim masses do not look beyond
34

Islam and they view it as complete way of life. The law of Divorce has become a tool in
the hands of the husbands to oppress the Muslim women. The Muslim scholars are of the
opinion that the Muslim Personal law as practiced under the Shariat Act had brought
untold miseries to Muslims women and if Allah appears in person, he would roll his head
in shame over the plight of Muslim women.
India is a multicultural and multi religious society and its citizens are given an
opportunity for their complete development irrespective of their sex, caste, religion or
race by ensuring the various fundamental rights in part III of the constitution. In spite of
constitutional assurances, the status of Muslim women has not improved because of the
religious ordain with its conservative approach. The Muslim women could not benefit
from the various welfare legislations since they are still governed by their own Islamic
laws. The centuries old principles of Islam are still applicable on various matters
concerning marriage, divorce and polygamy.
The Constitution of India the backbone of all national laws enshrines within it the
very important principle of justice, liberty, equality and fraternity for all citizens of the
country. This fundamental law of our land assures the dignity of individuals irrespective
of their sex, religion or place of birth. While framing the Constitution, the framers were
well aware of the various discriminatory practicesand suppression of womens rights by
the male dominated society. Therefore certain general as well as specific provisions were
incorporated for the protection and improvement of the women. Thus Article 15(3)
declares that nothing in this article shall prevent the state from making any special
provision for women and children.
The courts have also upheld the validity of many special provisions favoring the
interests of women. However in the case of Muslim women the law is to be first tested on
the touchstone of Muslim personal law. So there are child marriages, unilateral divorce
(Talaq) and polygamy in the Muslim community. The Muslim women get maintenance
only up to the iddat period and they are excluded from the purview of Section 125 of
CRPC. Therefore the Muslim women get neither the protection from the State nor are
they safeguarded by their own highly patriarchal personal law.

35

While the Christian and Muslim women are still being governed by their Canon
and Islamic Laws, the progress of Hindu women after independence was so rapid that
they achieved complete gender equality in the matter of property rights. The property
rights of women belonging to other religions are unequal and unfair. Hindus, Sikhs,
Buddhists and Jain are governed by one code; Christians are governed by another code
enacted by the British for the British Christians in India. Muslims do not have a code
regulating property rights. Christian and Parsi law blood relatives are preferred. Further
the absurdity is that same rule applies to Hindu male i.e., when he dies, his blood
relations are given preference and his wifes relatives do not even figure in the order of
succession despite the manner in which he may have acquired the property but when she
dies, the property can be claimed by even distant relative of the husband and not by her
own parents. A woman would prefer her blood relations to her husbands relatives to be
her heirs and this provision goes against the reciprocity of inheritance as the entire group
of husbands heirs howsoever remote have been made her heirs but she is not entitled to
inherit from them. With more and more women becoming economically independent,
socio-economic changes warrant corresponding changes in the law on the subject as well.
1. ORIGIN OF ISLAM IN INDIA

Islam was brought to India by the Arab Traders and the Muslim Sultans who invaded
India in the 7th century. Some of the traders from Arabia settled down along the Malabar
Coast in the 8th century and adopted the local customs and practices and they were called
Mappilas who constituted the first community who embraced Islam. Besides this,
conversion to Islam took place enmass during the Mughal Period. The Muslim invaders
gave an option to Indians to choose between death and Islam. They brought into their
kingdom Muslim mercenaries, businessmen and slaves from different parts of the world
like Russia, Afghanistan, Turkey, Arab countries and Africa. These people remained in
India and married local Indians and converted them to Islam. Since they were traders they
mastered the Law of Contract. They applied the basic principles of contract to marriage
also. This led to the formation of definite rights of women regarding their property102.

36

With the advent of British Rule in India, they made distinct personal laws for the
Hindus and Muslims. It was Hastings who reserved the law of the Quran to the Muslims
and the law of the Shastras to the Hindus: That in suits regarding succession, inheritance,
marriage and caste and all religions usages and institutions, Mohammedan law with
respect to Mohammedans and Hindu law with regard to Hindus are considered as the
general rules by which judges are to form their decisions. This classification is
erroneously made on the belief that there existed only two religions in India, The Hindus
and the Muslims. The Muslims later were divided into two major divisions Shias and
Sunnis. Hindus also divided into different groups like Sikhs, Jains, and Buddhists.
After creating exclusive personal laws for the two major communities, they adopted
the principle of non-interference and kept themselves away from reforms of these religion
based personal laws because the British did not want to injure the religious sentiments of
the community in India. The Second Law Commission pointed out in its report that
personal laws being religious in nature should not be interfered by an outside agency. The
State even after independence continued the same non-interference policy towards the
personal laws of different Communities. Later in 1956 only the Codification of Hindu
Law had been done by the Parliament in a piece meal manner.
However the first legislative reform was made in the Muslim Law in 1913 by enacting
the wakfs Act. This was to undo the effect of the Privy Council ruling106 that wakfs
which were founded for aggrandizement of family or gifts or Charity which were illusory
or wakfs which were merely nominal were void. The Muslim took this dictum as
inconsistent with the true view of Shariat. The Communities like the Khojas, Memons,
Vohras had followed the Hindu law and the courts also administered Hindu law to these
converted Muslims. Therefore in 1937 the second reform was introduced by enacting the
Shariat Act 1937 and all different factions of Muslims were brought under Shariat Act.
2. SHARIAT AND THE PROPERTY RIGHTS OF MUSLIM WOMEN

The Muslim Jurists gave much significance to the laws of inheritance and they
were never tired of repeating the saying of the prophet. The Prophet said that learn the
laws of inheritance and teach them to the people for they are one-half of useful
37

knowledge and modern authors have admired the system for its utility and formal
excellence. Macnaghten says that in these provisions we find ample attention paid to the
interests of all those whom nature places in the first rank of our affections and indeed it is
difficult to conceive any system containing rules more strictly just and equitable. The
Muslim law of inheritance consists of two distinct elements, the custom of ancient Arabia
and rules laid down by Quran and the Founder of Islam. The Koranic reform came as a
superstructure upon the ancient tribal law. Many of the prevailing, social and economic
inequalities were corrected for that reason Koran may be referred to as an amending Act.
With the advent of Islam and the teachings of prophet, the status of women slowly
improved. The prevailing notion that women were inferior to men had been dispensed.
Quran asserted the dignity of women and holds the view that man and woman are equal
and they complement each other. The prophet insisted the followers that female children
should be treated exactly on line with the male issues. During the pre-Islamic period
daughters were looked upon with frown and they were treated as an economic and social
burden. Instead the male members of the family enjoyed respect and there were glaring
differences in the upbringing of sons and daughters.
It is in this respect that one should appreciate the contributions of Islam to the well
being of women. Islam removed all the yokes on women. The practice of burying girls
alive was looked upon as a crime. Quran also refers to the reactions of the parents up on
the birth of a girl and condemns the parents who become sad with inward grief. The
sayings of the prophet also send the message that a girl should not suffer injustice or
inequality. Moreover he who has a daughter and does not bury alive or insult her and
does not prefer son to her, Allah will enter him into paradise. Unlike the Christian
teachings, Islam does not blame women for Eves mistake. Therefore every newborn
child carries within himself an innocent upright nature. This concept contradicts the
Christian belief of inborn sin. Islam teaches that no sin is inherited by a child. Both Adam
and Eve disobeyed Allahs orders, yet they were forgiven because they repented.
3. PROPERTY RIGHTS OF MUSLIM WOMEN UNDER THE CUSTOMARY LAW

38

In pre-Islamic Arabia the law of inheritance was based on comradeship-inarms and

hence even wife and children were excluded from inheritance. In fact the law of
inheritance was based on the principles of agnatic preference and exclusion of females.
Thus a daughter or a sister or daughters son or sisters son could not succeed to the
property. It is evident from this that before the advent of Islam women were not only
deprived of their right to inheritance but their very destiny was in the hands of her
husbands clan or with her relatives. In the pre-Islamic society males enjoyed upper hand
over females in matters related to inheritance. When a man lost his life, his heir would
claim the right over the widow and marries her. After marriage, he denies her the right to
claim the part of inheritance constituted by the dowry. He can also take the dowry and ask
another man to marry her. Further fatherless children never inherit, instead they were
mistreated and not looked after well and young girls would become victims of sexual
abuse.
However the prophet totally reformed the pre-Islamic law of inheritance without
abrogating all the customs of the pre-Islamic Arabia. He retained in their original form
many Arabian customs which did not conflict with the basic tenets of Islam. The prophet
removed certain economic and social evils then prevalent. For example, in pre-Islamic
Arabia, women had no right to inheritance. So Islam made husband or wife an heir.
Females and cognates were made competent to inherit. Parents and ascendants were
given the right to inherit even when there were male descendants. As a general rule
females were given one half the share of a female.
Thus Islam gave a share to women who were denied a share in pre-Islamic Arabia.
The pre-Islamic Arabs were against the inheritance to woman because of her weakness.
She is not capable of doing acts of defense and bravery. Hence distant males of the family
inherited the property. When Thabit, the well-known poet of the Arabs died leaving
behind him a wife and few daughters, the sons of his uncles seized all his property and
spared nothing for his wife and daughters. The widow complained to the prophet. Then
the prophet recited to them the verse that was revealed to him. So Quran created

39

inheritance rights for women at time when no such rights existed. The daughter gets half
the share of the brother.
Although Islam granted woman the right to inheritance, her share is by no means
fair and equal to that given to men. The brother takes twice his sisters share. This has
been looked upon as discrimination against women. The woman is given a lesser share
because Quran has assured inheritance to women not only as daughters but also as
mothers and wives. Moreover, in Islam the husband had to take care of his wife even if
she is wealthy enough to maintain herself. Legally she is entitled to claim maintenance.
At the same time she is not obligated to spend any of her wealth on the household. Again
at the time of marriage, the Muslim women receive Mehr which she is free to use, spend
or invest it in any way she likes. Therefore as a wife she adds to whatever she receives
through inheritance in her capacity as daughter and that she does not have to support
either herself or her children. Therefore the position of a Muslim woman is secure as far
as inheritance is concerned. Their financial situation is completely guaranteed by the
Islamic law.
However in practice, the divine rules regarding womens inheritance are violated
and overlooked by Muslim societies. Very often they are forced to give up their share for
the benefit of male members of the family. This is particularly the case where women are
married to wealthy men. Their share is automatically written off and would be absorbed
by the male relatives. If they refuse to do it they will be accused of being selfish, greedy,
inconsiderate and irresponsible.
4. MUSLIM LAW OF WILLS AND PROTECTION OF FAMILY MEMBERS

In the Pre-Islamic times a man had an almost unlimited power of disposing of his
property, but as the Quran has laid down clear and specific rules for the distribution of the
inheritance it was thought undesirable for man to interfere with gods ordinances.
Therefore the absolute testamentary power of the Muslim has been restricted to one-third
of his property. The reason is that for a musalman a Will is a divine institution since its
exercise is regulated by the Quran. It gives the testator the means of correcting to a
certain extent the law of succession and of enabling some of those relatives who are

40

excluded from inheritance. At the same time the prophet had declared that the power
should not be exercised to the prejudice of the lawful heirs.
Thus the Muslim law of Wills is a compromise between the divine rule and the
moral duty of a Muslim. He doesnt want to interfere with the divine law, at the same
time he is duty bound to make arrangements for the distribution of his property after his
death. However under a valid custom a Muslim may be allowed to dispose of his entire
property under Will because the Shariat Act 1937 does not apply to Wills. A bequest of
more than one-third may be done by the consent of heirs. The rationale behind the rule is
that the limitation of the testators power of disposition is entirely for the benefit of the
heirs and if they do not want it they are free do to so.

5.MUSLIM WOMENS RIGHT TO MEHR

The inheritance rights of women under Islamic law can be understood best if they
are examined in the larger context of property rights of women with in a marriage. The
law of marriage in a way is a law of property settlement rather than defining sexual
morality. Though the Muslim law of inheritance protects womens rights better than the
law, in the matter of matrimonial law, Hindu law is more favorable to women than the
Muslim law which permits Triple Talaq and Polygamy. However Islamic law is very
progressive since it permits dissolution of marriage either by consent or by providing for
irretrievable break down of marriage. Only in the latter half of the twentieth century the
British Matrimonial Jurisprudence accepted the concept of divorce by mutual consent.
This was included into Hindu law in 1976. The Divorce Act which governs Christian
marriages recognized this concept only in 2001.
Another characteristic feature of Muslim matrimonial law is the Quranic right of
Mehr: Dower / Mehr give Muslim women property rights. Dower is a payment whether
in cash or as property which the husband pays (known as prompt dower) or promises to
pay (deferred dower) to the wife. Dower is for wifes use and may be disposed as she
wishes. One of the ways in which women can empower themselves is through the Islamic
right of a reasonable dower without fear of social consequences. Mehr in a way provides
41

for future security for the woman at the time of marriage. There is not a parallel provision
in any other legal system. All provisions of dissolving a marriage become unjust to
women if they are not providing economic protection to women.
The right of the wife to receive Mehr constitutes a salient feature of Islamic law. This
concept of Mehr gives the Muslim marriage the status of a civil contract. Mehr is in turn
looked up on a token of respect towards women. Whatever may the Mehr, monetary or
not in law it is an exclusive property of the wife and not of her parents or guardians and it
removes the disability suffered by women under the law of inheritance. Since it is a
Quranic right the husband can give a particular house itself as Mehr. The woman will be
entitled to this property or its monetary value. If the husband refuses to pay the prompt
Mehr upon marriage, the woman can refuse fulfill her marital obligations including cohabitation. She is not bound to obey any of his commands, she is entitled to live
separately and claim maintenance from her husband during this period. In addition to that
she is entitled to talaq tafwiz in the case of non-payment of Mehr.
The superior position of women under Islamic law can be ascertained only if we
compare it with the status of women under other contemporary legal systems. Under
Roman and British Legal systems of this period, women lost their rights to acquire, hold
and manage separate property upon marriage. The Roman law of marriage owed its roots
to the Judaic law and is based on the concept of a patriarchal family consisting of wives,
sons and slaves. Under the British system upon marriage the woman loses her legal
existence resulting into her legal death. All her property belonged to her husband and he
could only use it be even alienate it without her consent. The husbands right to his wifes
property was held in such high esteem that even after betrothal, if the woman alienated
her property without the consent of the groom he could sue her for fraud.
In fact all the key Islamic legal materials generally support womens right to
acquire, hold, use, administer and dispose of property. A Muslim woman possesses
independent legal, economic and spiritual identity and independence. The Quran notes
that women shall be legally entitled to their share and that to men is allotted what they
earn, and to woman what they earn. Only if women choose to transfer their property can

42

men regard it as lawfully theirs. The Islamic laws supporting property rights of women
are drawn from a variety of fields such as marriage, dower, inheritance and maintenance.
Further a quotation from Baer, 1983:9 is worth mentioning in this context. He
says that (History)shows no doubt, that (Muslim) women were property holders a fact
which has been pointed out for various Islamic societies and should be reiterated here
that this certainly was not the case in many other civilizations including many western
societies. The question is whether it also disapproves the view of the subservient role of
women in traditional Islamic society. It is also pertinent to note here that the
Married womens property Act was passed in Britain only in the year 1860, whereas more
than 1300 years earlier that right was clearly established in Islamic law What ever men
earn, they have a share in that
III. DISPARITY IN THE STATUS OF WOMEN IN THEIR PERSONAL LAWS DUE TO
DISCRIMINATION ON THE BASIS OF RELIGION

India which is a multi religious multi cultural society has given to its citizens an
opportunity for their complete development irrespective of their sex, caste, religion or
race by enshrining the various fundamental rights in part III of the Constitution. Despite
this, religious precepts always superseded the beneficial pragmatic and humanistic
international and national laws of the country. The constitutional mandate of non
discrimination against any person on the grounds of religion given under Article 15(1)
has still not been enforced totally even after the promulgation of the constitution 66 years
ago. The property rights of Christian women are even now a distant dream because of the
strong religious precepts, church teachings and the retention of the Common law concept
of subjugation of women by making them a non-entity after marriage. The church always
insisted on the obedience of women to her husband.
The Church perpetuates patriarchy and subjugation of Christian women. To add to
that the legislature has not taken any steps to control the testamentary capacity and also to
prevent the execution of release deeds at the time of marriage whereby the daughters are
prevented from claiming their share under section 37 of the Indian Succession Act 1925.
43

Further the streedhanam given to the daughter at the time of marriage is to be handed
over to the Father in law or to the husband. This is in fact a reflection of the Common
law concept of Covertue under which wife becomes a non-entity. The ulterior motive
behind this is to keep the women economically dependent on the husbands family and to
restrict her freedom.
Hindu women had also this traumatic experience and they were also kept under
subjugation by denying them property rights. Women of the ancient period did not have
any right to hold, acquire or dispose of property. It was clearly laid down in the Rigveda
that a son born of the body does not transfer wealth to sister.Married daughters living
with their husbands could inherit from their father only when they had no brother.The
position of the wife of the Vedic age was also highly condemnable. There was no check
on the tyranny of man over women. The society was highly patriarchal and masculine.
The household was ruled by the husband who wielded absolute control over all other
members of the family. Women were treated as property and upon marriage dominion
over them was transferred from the father to the husband. Neither the daughter nor the
wife of this period enjoyed any legal status which means she could neither hold nor
inherit property.
However the status of Hindu women underwent radical change with the enactment
of the Hindu Succession Act 1956. It is apt to repeat the observation of the Supreme
Court in Tulsamma v. SheshaReddy. The Court observed that the shackles placed on the
Hindu women over her property have been broken by this act and her status has been
brought on par with men. Further the 2005 (Amendment) Act wiped away all the
inequality that was retained in the 1956 Act thereby conferring an enviable status to the
Hindu Women though it is on paper.
It is pertinent to note here Christian women of Kottayam District also hail from
families having ancestral properties. Yet they do not acquire any birth right, Instead very
often they are sent to matrimonial homes after giving a nominal amount as streedhanam
with this the whole tie with the natal family will be cut off. She has to depend on her
husband for the rest of her life. In other words she has to live like a slave, surrendering all
her liberty, dignity and self-esteem. She gets 1/3 of the share of husbands property only
44

when she becomes a widow. Besides this she has to hand over the stridhanam to husband
or to the father-in-law.
In this context we should appreciate the contributions of Islam to the well being of
women. Islam removed all the yokes on women. Quran asserted the dignity of women
and holds the view that man and women are equal and they complement each other.The
Muslim women were also denied property rights under the pre-Islamic customary laws;
wife and children were excluded from Inheritance. In fact the law of inheritance was
based on the principles of agnatic preference and exclusion of females. Thus a daughter
or a sister or a daughters son or sisters son could not succeed to the property.
In other words before the advent of Islam women were not only deprived of their
right to inheritance but their very destiny was in the hands of her husband family or with
her relatives. In the pre-Islamic society males enjoyed upper hand over females in the
matter of inheritance. But the prophet totally reformed this customary law of inheritance
and made husband or wife an heir. Females and Cognates were made eligible to inherit.
Thus Islam gave women a share which was denied to her in pre-Islamic Arabia. Even
though she is given a share, she is treated unequally by giving her half the share of her
brother.
Muslim women do not have equal right regarding marriage or divorce. Repeated
uttering of the word Talaq could make a Muslim woman a destitute. However the women
do not have such rights. Besides this, the practice of polygamy adds to the misery of
Muslim women. Hence because of polygamy and Triple Talaq the Muslim women are
more vulnerable than their counter parts in other religions However with regard to
inheritance rights she stands superior to Christian women because the Quran assures her a
share although not equal to that of her brother. Quran compensates it by giving her right
to Mehr which she can keep with her and claim maintenance from the husband even if
she is rich.
An analysis of the property rights of Christian , Hindu and Muslim women point
towards the fact that the status of Christian women is the most vulnerable as far as
property rights are concerned. The Christian women are deprived of equal rights to
parental property because of the continuance of the dowry system under Section 28 of the
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repealed Travancore Christian Succession Act 1916 which provided that the male shares
shall be entitled to have the whole of the interstates property divided equally among
themselves subject to the claims of the daughter for streedhanam. Section 29 further
provides, the female heirs or the descendants of the deceased female heirs will be entitled
to share in the intestates property only in the absence of the male heirs. These two rules
of succession are still being continued in the Catholic community of Kottayam District
and Kannyakumari District even after its repeal following the verdict of the Supreme
Court in Mary Roy v. State of Kerala.
Further, the Christian families with ancestral properties still continue the custom of
partitioning the properties among the members of the family. Here also a daughter who
has been given streedhanam will be excluded from partition. It is to be noted here that the
father / testator can disinherit a daughter through a Will also. These two practices are still
unabashedly going on in the Catholic families. Meanwhile the Hindu personal law has
undergone changes through a continuous process of codification. The state is continuing
its neglect towards the Christian women who are still being governed by the law of Israel,
religious precepts and customary practices that are repugnant to the constitutional
mandate of nondiscrimination and the principles of non-discrimination enunciated by
CEDAW. It can be rightly added that Christian women are suffering from double
discrimination, the discrimination on the basis of religion and discrimination on the basis
of sex.
The Constitution of India recognizes equality of status and in fact provides for
certain provisions under the chapter on fundamental rights more favourable to women but
in actual practice they are observed more in breach than in compliance. This is absolutely
true in the case of Christian women. It is worth quoting here a passage cited by Mr. Fali
Nariman referring to the U.S. Constitution Congress woman said: We the people a very
eloquent beginning. But when that document was included on 17.09.1787, it was not
included in that we the people I feel somehow for many years that George Washington
and Alexander Amialton just left me out by mistake. But I realize that it is through the
process of interpretation and court decision that I have been finally included in we the
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people. The Christian women will acquire equal status only if she is freed from Church
influences, patriarchal family system, of restricting the practice of execution of release
deeds and testamentary capacity of the testator.
CONCLUSION
An analysis of the inheritance rights of the Christian, Hindu and Muslim women
brings forth the reality that only the Christian women alone are deprived of the right to
inherit a share of the ancestral property. This is the mere callousness of the Legislature.
The international Conventions on women always focus on womens inheritance rights.
However neither the community nor the Church would ever take any step to plug the
existing loopholes in the Indian Succession Act 1925 because they are up in arms against
women inheriting property. The Law Commission also has been enthusiastic in the
reforms of Hindu Succession Law. No such enthusiasm is shown in reforming Christian
Personal Law. In tune with the Law Commissions recommendations, even the
Government has made an effort to make reformatory laws in Hindu Succession, though it
is not implemented effectively. To make matters worse Christian women are still being
controlled by the Church through its Canon laws which ensure womens subjugation and
subordinate status.
Certain rights having been denied to women on the basis of gender are now slowly
been granted to them by the legislative and judicial machinery of the state. Landmark
legislation has been brought in wherein daughters have now been granted coparcenary
rights as also the liabilities, more female heirs have been promoted from Class II to Class
I, thereby making them primary heirs, provisions granting partition right restricting only
to males in the dwelling house which reiterated traditional patriarchal concepts towards
women have now been deleted thus giving rights also to females to ask for partition in the
dwelling house and provisions exempting agricultural holdings from HSA, 1956 has been
deleted thus removing the gender inequalities in the inheritance of agriculture land.
Bombay High Court while discussing the constitutional validity of provisions dealing
with the devolution of male and female dying intestate under HSA, has rightly held that
such provisions show discrimination between Hindu men and women, therefore they are
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unreasonable thus, unconstitutional and ultra vires as being violative of Article 15(1) of
the Constitution of India. Law as it is applied in India today shows a positive reform with
regard to the position of females and clearly shows that rules of personal law based on
religion are not above reform in order to bring them into conformity with social and legal
change. The National Common Minimum Programme of the then Government (20042009) enunciated that complete legal equality for women in all spheres of life will be
made a practical reality, especially by removing discriminatory legislation and by
enacting new legislation that gives women, for instance, equal rights of ownership of
assets like houses and land.
Women's equality as delivered by the courts can only be an integration into a preexisting, predominantly male world . The High Courts have at times taken firm stand of
holding certain provisions to be discriminatory on basis of sex and declared to
constitutionally ultravires but still lot needs to be done. Though the courts may be well
meaning and earnestly intend to uphold equal rights for women, they can only reflect the
shared life experience of individuals; this takes a largely male hue, not only because the
judgment-deliverers are predominantly male, but also because society systemically
supports male supremacy and this systemic slant shades the thought processes that lie
behind laws too, and the courts apply the laws in their judgments .The law of the public
world must be reconstructed to reflect the needs and values of both sexes, change must be
sought from legislatures rather than the courts. The codification of the old Hindu law has
not kept pace with the constitutional mandate of gender equality and in removing gender
disparity completely. With the increase in social integration, economic independence,
reform movements, there needs a further call for the improvement of the woman's
position in the Hindu society. As independent India relies heavily on legislation to bring
in social reform and ensure removal of inequality and discrimination, the necessity is to
review the present succession laws and to bring the position of women at par with men.

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