MAHARSHTRA NATIONAL LAW UNIVERSITY, MUMBAI

FAMILY LAW

FINAL DRAFT

SEMESTER II

B.A LL. B(Hons.)

TOPIC: IMPACT OF HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937 AND

THE SOCIAL RIGHTS OF WOMEN IN INDIA.

SUBMITTED TO: Prof. Ashok Srivastava

SUBMITTED BY: Sakshi Salunke

ENROLMENT NO.: 2017-043

 INDEX

1. INTRODUCTION

2. WOMEN’S PROPERTY RIGHT UNDER CUSTOMARY

LAW IN SOUTHERN INDIA

3. THE HINDU WOMEN’S RIGHT TO PROPERTY ACT,

1937.

4. RIGHT OF HINDU WOMEN IN UNDIVIDED

PROPERTY

5. 174TH LAW COMMISSION REPORT OF INDIA-2000

6. RIGHT OF WOMEN UNDER HINDU SUCCESSION

ACT, 1956

7. CONCLUSION

8. BIBLIOGRAPHY
INTRODUCTION

HISTORICAL BACKROUND OF HINDU WOMEN’S RIGHT TO PROPERTY ACT

Ancient Period

After this system was waned, male domination started in ancient period. Gradually, the
patriarchal societies occupied the place of matriarchal societies. So, the surname was carried
on the name of father. If a man died, his property was distributed among his sons, father and
other male relatives. The priority to the females was lessened or completely suppressed up.
Gradually she was ostracized and was made as the weaker and dependent person.

In wars, the defeated men and women and their property were handed over to the victorious
ones. The defeated men and women were treated very badly (or were treated as slaves). No
rights such as political, social and economic rights were given to the slaves in the society. Just
as the land, houses, etc., the slaves were also treated as property and was similarly applied to
the women too. Women were treated as the property of the men. Independence of women’s
existence and their freedom were smashed to the core. Their property rights were usurped by
men. In succession, only men were recognized as the legal heirs and the women were
completely excluded. Women were left without property and became socially the weaker
section. Their position was no better than that of slaves, since matriarchal societies were
completely or destroyed. In place of them, patriarchal societies came into existence in the
middle age. Father began to dominate all the affairs of the family. The state was ruled or
governed by men only in political domain too.1

In Hindu tradition, the husband and the wife should be the joint owners of the house hold and
its property. The husband was required to take a solemn vow at the auspicious occasion of
marriage that he would never breach the rights and interest of his wife in economic matters.
The theory of the joint ownership of the couple had kept the wife at a minor advantageous
position. It was not pressed to its logical conclusion to secure her an absolute equality with the
husband in the ownership of the family property.2

1
http://shodhganga.inflibnet.ac.in/bitstream/10603/7870/9/09_chapter%202.pdf
2
http://www.livemint.com/Money/xHyVhwi9ZqBGWAjad4VD0M/Hindu-law-doesnt-allow-different-types-of-
coownership.html
General circumstances in society were very adverse to the theory of the joined ownership being
utilized to invest the wife with the powers and rights. Landed property was for a long-time
being owned either by village committees or by large joint families. Individual ownership was
but slow in coming into general recognition in the case of males. By the time individuals and
coparceners could assert their individual rights in the estate of the family, the husband had
come to be denied and it became very difficult for jurists to invest the wife with any substantial
rights as against the husband. The joint ownership of the husband and the wife practically
remained a legal fiction. In effect, the husband was the sole owner of the family property and
the wife had no legal remedy if he proceeded to squander it and defeat her right to maintenance
or a share. It was only with reference to immovable property that Hindu society was for a long
time unwilling to invest the wife with full or exclusive ownership. As far as movable property
like ornaments, jewels, costly apparel etc., was concerned, a woman’s right to own, it was
recognized at a very early date. All this property went under the category of stridhana or
women’s special property.

VEDIC AGE

The position of women in Vedic period can be judged by the way in which the birth of a girl
was received. People received the birth of a girl without happiness. The birth of a girl was
considered as a bane comparatively to the birth of a boy. The daughter was always dominated
by her father until the time of marriage, and then by her husband and his family. If a daughter
remained unmarried throughout her life, then she would be under the control and protection of
her father’s protection. If her father died, she would come under the control and protection of
her brothers, provided the brothers had undertaken to maintain her. Otherwise she had to live
on her own. Perpetual tutelage of women is of later origin. The social or familial status of the
daughter was satisfactory in the early Vedic period. Women were educated like boys and had
to pass through a period of brahmachariya. Instances of Gargi Vacaknavi and Maitreyi, of
course prove that education was imparted to females, and some of them attained to rare
intellectual heights. Daughters did not have any right to hold, acquire or dispose off property.
It simply means that she did not enjoy legal status in the early Vedic times. But the daughter
living in her fathers’ house throughout her life got a share in his property. However, she could
not claim any share with her brothers because it has been laid down in the Rig Veda that a son
born in the family does not transfer wealth to the sister. Married daughters living with their
husbands could inherit from their fathers only when they had no brother. Wife in the Vedic
period suffered a disability of not having any legal status with respect to property. She could
neither hold nor inherit property.3

The wife was obviously not able to defend her property and she could not hold any property.
However, among the Aryan community, the earliest traces of separate property of women
called as “bride price” can be perceived. A part of this price was paid by bridegroom either at
the wedding or the day after it. When he went to the bride’s father and paid an amount as
compensation for the family authority which was transferred to the husband. And another part
went to the bride herself and this part was enjoyed by her separately and kept apart from her
husband’s property. Daughters did not have any right to hold, acquire or dispose off property.
She did not enjoy any legal status in the Rig Vedic times. Daughters were looked upon as
encumbrances. Ceremonies were performed with the special object of avoiding the birth of a
girl. The social and familial position of daughters deteriorated in the age of Smritis and
Commentaries. Thus, females were not considered to be equal to males in respect of property
rights. But so far as her rights in the property of the father were concerned, she was not
altogether ignored. Manu said, “As is self, so is a son, and a daughter is equal to a son, how
they, when one’s self is living in a form of one’s daughter, can anyone else take the wealth”

POST VEDIC AGE

There were slow changes in the position of women during the post Vedic period. The
proprietary right of the wife also continued to be unidentified, the only exception being in
favour of marriage aids of movable property. But, Manu, has spoken regarding the legal status
of the wife that she had no proprietary right, “a wife, a son, a slave, these three are declared to
have no property, “the wealth which they earn is acquired for him to whom they belong”.4

Marriage during the Vedic age was unbreakable. Like wife, no right was entrusted to a widow
in the property. She could live in the joint family and receive maintenance. Living in a joint
family was insecure. In case of a widow, she had nobody to look after her as daughter, wife or
mother and wasn’t recognised as heir to her husband.

3
https://indiankanoon.org/doc/80896406/
4
http://apartmentadda.com/blog/2015/05/21/property-inheritence-nominee-legal-heir/
AGE OF SMRITI

This Smriti period witnessed conferment of certain rights on female heirs by Manu, Yajna
Valkya, Brihaspati, Narada, the Hindu law givers and Smriti writers in the order of succession.
The Smirithikars right from Gautama and Manu in around 5th to 3rd century B.C,
acknowledged a concept of ownership which they called streedhan - a woman’s exclusive
property. Moreover, Manu admitted widow, daughter and mother in the order of succession.
Brihaspati emphasized the right of succession to daughters and wives. Narada also recognized
The Dharma sutra of Gautama also throws ample light on the property right of women. Kane
has quoted some passage from the Vedas in support of his view that women’s separate property
was absolutely enjoyed by her, yet it is possible to trace two entirely different views which is
not in consistent lines of thought. On the one hand, woman was assigned an exalted rank and
on the other hand, she was treated incompetent to hold property of her own. In the Smriti period,
widow, daughter and mother were expressively recognized as heirs. But at the same time, this
right of inheritance. It also includes that which descends to the heir on the death of owner
intestate) was made subject to certain conditions such as chastity and absence of remarriage.
After the Smriti period, the right of succession was embodied in the commentaries. In course
of time, the commentaries appear to have acted with ever increasing force to give an impulse
to the systematic building up of law. As a result, the process of development and assimilation
continued.5

Women’s Property Rights in Pre-Independence Period

India is one of the few countries where women enjoy a comparatively better status than many
women in other parts of the world. True, Indian women still face many problems and are subject
to the same social pressures which women experience in other parts of the world. However,
relatively speaking, their situation is much better than what it used to be in the pre-
independence era when women had little freedom outside the walls of their homes.

On the positive side, women have made rapid strides in every aspect of modern life. The
constitution guarantees them equal opportunity and where necessary provides them with
necessary safeguards from possible exploitation or injustice. Indian women of today are not

5
http://sivanandaonline.org/public_html/?cmd=displaysection&section_id=572
afraid of voicing their opinions or joining forces with other women in the local communities to
fight against social maladies, drugs, alcoholism, domestic abuse and injustice. 6

They now have opportunities to take bold decisions or lead unorthodox lives, which might have
made them vulnerable to social ridicule and family pressures few decades ago. Undoubtedly,
women of today’s India enjoy a better status and freedom than women in the past. Indeed,
Indian women politicians enjoy more popular support and leadership positions in Indian
politics and political institutions than their counterparts in the most advanced nations, including
the USA.

On the negative side, Indian women suffer from many disabilities and social injustices. This is
true for all Indian women, to whatever religion they may belong, except where their status,
roles and responsibilities are directly influenced by religious beliefs such as marriage and
inheritance. It is more acute among women who belong to economically or socially backward
communities, and women who are uneducated or solely depend upon their men for survival
and sustenance.

Indian women rank high in terms of the number of prostitutes in the world and girl children
who are neglected, abused and often sold into prostitution or bonded livelihood, purely for
economic reasons. They rank high as victims of AIDS, and as women who live below the
poverty line, who are often victimized and forced to do physical labour even when they are
pregnant or sick. Speaking of the sexual attitude of Hindu males, we know they are not much
different from their counterparts in other religions. Abduction and rape of women are
widespread problems in India both in the rural and urban areas, which is exasperated by slack
law and order, bureaucracy and a complicated legal process.

“A Hindu woman, whether a maiden, a wife or a widow has never been denied the use of her
property. Even in Manu smriti one can see that right to hold property had been respected 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 husband’s family would also be added to her own. It was Gautama Dharmas Astra
who first called women’s property as Stridhana share”7. Mayne also opined that the original

http://apartmentadda.com/blog/2015/05/21/property-inheritence-nominee-legal-heir/6
7
https://documents.tips/documents/hindu-women-right-to-property.html
https://ses.library.usyd.edu.au/bitsream/2123/9350/1/Manjinder_Final20Ppaper.pdf
bride price payable to the parents appear 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 labour. Yet she had no absolute control over
her property because her right to dispose of the property is restricted.

It is true that we cannot generalize the situation of India women in India due to the
heterogeneous nature of Indian society. Indian women belong to different social and economic
strata. What is true in case of a group may not be true in case of others. The number of Indian
women exceeds the whole population of North America, including Mexico. Their sheer size
and diversity make any study of them difficult. So much has been happening in Indian society
as of late that it is difficult to make objective conclusions about their status and general
conditions without attracting criticism or an opposite response. Such diversity and the sheer
size of their population and age groups give wide scope for distortions and misinterpretation.
It also leads to exploitative politics and false narratives.

The Internet itself is a glaring example of such distortions. There are many websites on the
Internet today which present a very pathetic situation of Indian women, especially Hindu
women. Some of them do it to catch attention while some do it purely with malice and an aim
to distort Hinduism for personal or political reasons. Some of them quote from Hindu scriptures
to prove their point but fail to present the other side of the argument also. Obviously, the people
who publish one-sided information about Hindu women or Hindu community have little
sympathy and tolerance for whatever that Hinduism represents. Their approach is one sided,
utterly biased and intended to convert people to other faiths or draw attention to themselves.

It is true that some of the ancient scriptures of Hinduism were very partial to women and treated
them with disdain, but we have no evidence to suggest that all people followed them or abided
by them, considering that Indian society was heterogeneous even then, as it is now, and
consisted of diverse ethnic, linguistic and regional groups.

In ancient India there was a great deal of social diversity and hardly any organized political or
religious machinery to universally implement the religious laws. The Indian subcontinent was
hardly under a single administration in its long history. Even those who had large empires had
to be content with limited power and entrusted the task of ruling faraway provinces to local
rulers.
Religion was then, as it is now, mostly a matter of personal choice. The Dharma Shastras, or
the law books of Hinduism had a little impact on the day to day lives of most people. The kings
and the nobility had little interest in the masses beyond collection of taxes. They enforced the
Hindu laws only if they patronized the Vedic faith in the areas that were directly under their
control. It is therefore incorrect to base our conclusions about the status of women in ancient
India exclusively according to scriptural injunctions.8

We also know that they enjoyed freedom according to their social and economic status and the
faith they practiced. Women excelled in arts and crafts and often engaged in wars as soldiers.
Chandragupta Maurya employed women as his personal guards. Women gave counsel to their
husbands and stood with them in times of crises. In some communities, children inherited their
mothers’ names rather than their fathers’. Many women entered the folklore as goddesses for
their exceptional lives or sacrifices.

Therefore, we request readers to be careful about such misinformation and the websites which
contain them when they search the Internet for information about Hindu women. The problems
of Hindu women are not peculiar to Hindu women. They are the problems which are common
to most women in the world, irrespective of their religions, social backgrounds, and
nationalities. We, therefore, urge the readers to exercise caution when they visit the websites
to which we have provided links here.

It is common knowledge that the Indian society is predominantly patriarchal, and the
preferential rights given to men with respect to property, both movable and immovable, are jus
another manifestation of the male centric societal structure. Giving women the right to inherit,
own, use and dispose off property is a recent phenomenon. Although this project deals
specifically with the right to property of Hindu women, the absolute lack of such rights or the
presence of only limited rights regarding property, where women are concerned is common
across religions.

8
https://economictimes.indiatimes.com/bangalore/property-rights-of-women/articleshow/1910002.cms
https://www.google.co.in/search?q=hindu+women%27s+right+to+property+act+1937+bare+act&ei=K7KGWs
C8OsnpvATBxrywBg&start=60&sa=N&biw=726&bih=666
https://issuu.com/aurathenewera2007/docs/rights_of_a_hindu_women
.
WOMEN’S PROPERTY RIGHT IN THE POST-INDEPENDENCE PERIOD

The current position on a Hindu woman’s right to property is backed by an interesting history
of a broad spectrum of laws, both customary and formal. In the Vedic era, women were treated
at par with men, economically. Wives had equal rights over their husbands’ properties. In stark
contrast to the Vedic scenario is Manu’s declaration that property should not be granted to the
wife, the slave or the minor son. Wives, however, were not the only victims of such gender-
based discrimination as daughters faced similar disadvantages when it came to proprietary
interests. Daughters were seldom allowed to inherit their father’s property and in case of the
joint family property their rights were relegated to mere maintenance as against their natal
homes. Widows were no better off in their matrimonial homes. Even if women were allowed
ownership of property, it was only a life interest, which reverted to the source on their deaths.

The property rights of the Hindu women are highly fragmented based on several factors apart
from those like religion and the geographical region which have been already mentioned.
Property rights of Hindu women also vary depending on the status of the woman in the family
and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife
or widow or mother. It also depends on the kind of property one is looking at: whether the
property is hereditary/ ancestral or self-acquired, land or dwelling house or matrimonial
property. Prior to the Hindu Succession Act, 1956 ‘Shastric’ (Hindu Canonical) and customary
laws that varied from region to region governed the Hindus. Consequently, in matters of
succession also, there were different schools, like Dayabhaga in Bengal in eastern India and
the adjoining areas; Mayukha in Bombay, Konkan and Gujarat in the western part and
“Marumakkattayam or Nambudiri” in Kerala in far south and Mitakshara in other parts of India,
with slight variations. Mitakashara school of Hindu law recognises a difference between
ancestral property and self-acquired property. It also recognises an entity by the name of
“coparcenary”. A coparcenary is a legal institution consisting of three generations of male heirs
in the family. Every male member, on birth, within three generations, becomes a member of
the coparcenary. This means that no person’s share in ancestral property can be determined
with certainty. It diminishes on the birth of a male member and enlarges on the death of a male
member. Any coparcener has the right to demand partition of the joint family. Once a partition
takes place, a new coparcenary would come into existence, namely the partitioned member,
and his next two generations of males.
Women’s 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 stridhan 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 specially 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.9

Despite all these women’s 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.

In ancient times, Hindu women, irrespective of their marital status were not deprived from the
use of their property. It has been found from Manu smriti that the right of women to hold
property was respected.

[i] Women’s property rights were improved and defined during the time of eminent jurists like
Yajna Valka, Katyayana and Narada, who strived to promote the idea of women exercising
their right to property.

[ii]. Stridhan, which translates literally to “woman’s wealth” and denotes a type of property
unique to women, was a term coined by the Smritikars.

[iii]. This was a woman’s separate property. Jimutavahana went to the extent of stating that a
woman possesses absolute control over her property, even after marriage.

9
Bina Agarwal, Redefining Family Law in India,306-354, (Routledge DelhI,2007)
http://socialregenerationandequity.blogspot.in/2013/10/womens-property-rights-in-india.html
S.T. Desai, Mulla’s Principles of Hindu Law, 16th Edn.,89(1994)
[iv] However, this statement on his part was not completely accurate given the actual
practice prevalent in those times. Women, although not barred from enjoyment of their
property, were denied absolute control over it. The rationale behind this was to keep a check
on the female population in society. To give women unbridled freedom would allow them to
become independent and independence was a highly undesirable trait to be found in a woman.
Though women were given the right to their separate stridhan they didn’t enjoy complete
control over it, they needed their husband’s consent to dispose off a certain part of their
stridhan. Manu said, “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.”

[v]This was a manifestation of the then prevalent view that women fell in the same category as
slaves and chattel of men. 10

The evolution of the legal stand on the right to property of Hindu women can be traced from
the ancient times when customary laws were prevalent to the current era where the written law
is the last word in matters of conflict.

This project shall focus broadly on the various rights and responsibilities, concerning property,
of Hindu women. The two broad classes into which women shall be classified for this study
are Wives and Daughters. While studying daughters’ right to property I shall consider both
unmarried as well as, married daughters. The issues that shall be highlighted in this paper are
as follows.

THE HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937.

Prior to 1937 there were no codified laws to deal specifically with the Hindu women’s right to
property, where disputes arose, they were settled in accordance with the customary practices.
In 1937, the Hindu Women’s Right to Property Act was passed after much voicing of discontent
over the unsatisfactory condition of women’s rights. In the prevalent socio-legal atmosphere of
that time this Act came as a breath of fresh air for supporters of female empowerment.
However, it was by no means enough to achieve the lofty target of gender equality. Under the
said Act– “a widow was entitled to a limited interest over the property of her husband – what
was to be termed as Hindu widow’s estate.”11 [vi]The ameliorative effects of this legislation

10
https://books.google.co.in/books
11
https://www.casemine.com/search/in?q=women+right+of+property+act+1937
were further diluted in 1938, when it was amended to exclude a widow’s interest in any
agricultural land.

Under this Act, “a Hindu man’s widow, his widowed daughter in law and widowed
granddaughter in law are entitled to inherit to his estate, not only in default of, but along with,
his male issues.”

[vii] The widow in a Hindu coparcenary succeeds to her husband’s claim irrespective of the
existence of male heirs. The right of survivorship of his collaterals is hence defeated. However,
the claim granted to the widow is a limited one and it is such a limited interest that has come
about to be called as a Hindu woman’s estate. It is incorrectly presumed that a widow has an
interest in life in the estate she inherits. Hindu Mitakshara law does not measure estates in terms
of time but based on usage of the estate.

[viii]. A Hindu widow in possession of the estate is entitled to its complete beneficial enjoyment
and is answerable to no one if she’s not guilty of wilful waste.

[ix]. The peculiarity of this estate is that on the death of the widow, the estate does not pass
onto her heirs but to the heirs of the last male owner or the last full female owner about stridhan
property, whichever the case might be.

[x] The widow herself cannot become “fresh stock of descent”.

[xi]. Shastri authorities have stated that a widow only inherits a limited interest in her husband’s
estate, however, nowhere is it said that similar restrictions are applicable over other female
heirs. The class of female heirs which are from another gothra or after marriage shall become
of a gothra different from that of the last male owner.

[xii] Take from the male heirs, the property in full as absolute owners. This class includes
daughters, children’s daughters and the sisters and daughters of descendants, ascendants and
collaterals within five degrees, who inherit in order of propinquity.

https://indiankanoon.org/search/?formInput=hindu%20women%27s%20right%20to%20property+doctypes:high
courts
Right of Hindu Women in Undivided Property
Every citizen of India is guaranteed equality before law and equal protection of the laws
irrespective of his gender, caste, creed, and race. The Constitution of India also contains
provisions for empowerment of women. The concept of equal social status to women also
includes their right to hold and inherit property like the male members of the family. Despite
the equality guaranteed by the law of the land, women in India had suffered a lot of inequalities.
Prior to the enactment of the Hindu Women's Right to Properties Act 1937, women were not
entitled to a share in the Joint Family Property and succession was governed by survivor ship.
As per the rule of survivor ship, on the death of a member of joint and undivided family, his
share in the joint family property would pass on to the surviving coparceners, which was
Another area, which was improved upon, is Co-parceners property. Co-parceners property is a
Hindu undivided family property. The member of Hindu Undivided property is called
coparcener who attains the right in the property by birth. They are all related to the head of the
family. This Co-parceners include relatives within four degrees including Kartha. Earlier
females were not member of co-parceners, hence were denied succession to the ancestral
property.

Many states including Karnataka, Andhra Pradesh, Maharashtra, Tamil Nadu Kerala have
amended the Hindu Succession Act 1956. Amendment to Hindu Succession Act by Karnataka
has come into effect from July 30, 1994. Women who have married prior to July 30, 1994; do
not have any rights in the ancestral/co-parceners properties. But this Act gives women equal
status as that of a male who are married or not after July 30, 1994. She becomes a member of
Co-parcener by birth in the same manner as that of a son. On partition of the Co-parcener
property, she is entitled to the equal share as that of a son. The property so acquired on
succession is capable of being disposed by her, through Will or any other Testamentary
disposition.

In certain cases, the ancestral house might be the coparcener property. Generally, members of
the joint family, mostly male Co-parceners reside in such houses. In such cases, the female
member cannot force a partition of such ancestral house unless other male members in
occupation of the house opt for partition.
But the unmarried daughter, a married daughter deserted or separated from her husband, or a
widow is entitled to a right of residence therein. Inclusive of only the male members of the
family.

What is Coparcenary?
The Hindu Succession Act, 1956 gave women equal inheritance rights with men. But the
daughters were not given a birth right in the ancestral property under the Mitakshara
coparcenary. Coparcenary refers to equal inheritance which was restricted only to male
members of the Hindu Undivided Family. It is a narrower body of persons within a joint family.
Coparceners jointly inherit property and have unity of possession.

Coparcenary is limited to three generations next to the holder. If a man has sons, grandsons and
great-grandsons living, all of these constitute a single coparcenary with him. The share of
coparceners in the joint coparcenary property was fluctuating which diminished and enlarged
with the birth and death of a coparcener in the family. No female was a member of the
coparcenary in Mitakshara law before the Hindu Succession (Amendment) Act, 2005. 12 If the
family owned a dwelling house, then the daughter's right was confined only to the right of
residence and not possession or ownership. The daughter has been made a coparcener by birth
in the joint property after coming into force of the Hindu Succession (Amendment) Act, 2005.

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 to provide Hindu women equal
inheritance right in the ancestral property. In the Mitakshara coparcenary only the male
members get property by survivorship. So, the Mitakshara system perpetuated patriarchal

12
Manisha Garg and Neha Nagar, “Can women be Karta?” legalservicesindia.com (Accessed on 07.06.2010).
https://www.nrilegalservices.com/property-rights-women-india
http://natural-justice.blogspot.in/2014/03/indian-womens-rights-to-property.html
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.13

Right of Women Under Hindu Succession Act, 1956:

The Hindu Succession Act, 1956 dealt with law relating to intestate succession among Hindus.
The properties of a Hindu male dying intestate devolves, in the first instance, equally on his
sons, daughters, widow and mother and include the specified heirs of predeceased sons or
daughters. Section 6 of the Act deals with devolution of interest in the coparcenary property.
According to the Section 6 of the Act prior to the passing of the Amendment Act of 2005, the
interest of a coparcener who died intestate shall devolve on other coparceners by rule of
survivorship. According to the unamended, if the deceased died leaving behind a surviving
female relative specified in Class I of Schedule I, or a male relative specified in that Class who
claims through such female relative, or a male claiming through such female, the interest of the
deceased in the Mitakshara coparcenary property shall devolve by testamentary or interstate
succession under this Act and not by survivorship. Thus, in Mitakshara coparcenary females
could not inherit ancestral property. Thus, the provision contained in the unamended Section 6
of the Act, by excluding the daughters from participating in coparcenary ownership not only
contributed to an inequity against females but had also led to oppression and negation of their
right to equality.14

Remarkable changes: The act introduced far reaching changes in the law of succession. It was
intended to give better rights to women by recognizing their claim to fair and equitable
treatment in certain matters of succession. Moreover, this act therefore, touched many branches
of Hindu law such as joint family and partition, adoption, maintenance and inheritance. This

13
Law Commission of India,174th Report on “Property Rights of women: Proposed Reform under the Hindu
Law.”2000(May 5,2000)
14
Purva Chadha, “Hindu Family Property law in India and Gender Equality; Analysis of the Hindu Succession
Act 1956”, Vol 2, SCJ J 16. (2002)
act effects important changes both in the law governing the devolution of a person’s separate
property and in the law governing the interest which he might have in undivided joint family
properties. Regarding the separate property of a person is concerted a widow can take only in
default of a son, grandson or great grandson. Moreover, the act provides that the widow shall
be entitled to a share in the inheritance along with such persons. It also gives them a very high
rank in the line of heirs that they are permitted to share the inheritance along with the widow
and the sons, grandsons and great grandsons of the deceased superseding even his daughter and
granddaughter’s sons. Further the act provides that whatever be the character of the property
which the widow gets on her husband’s death, it is only the limited estate (i.e.) Hindu Women’s
Estate. However, she shall have the same right of claiming partition as a male owner. Thus,
under this act, when a widow succeeds as to her husband, the ownership in the properties both
legal and beneficial vests in her. She is entitled to the full beneficial enjoyment of the estate.
She cannot alienate the property unless it is for legal necessity or for the benefit of the estate

CONCLUSION

Change is a reality. Even the change works in the minds of human beings. The status of women,
from one angle of vision, is also due to the change in human mind, the development of thought
and reasoning. In the pre-social stage, we know that men and women lived on fruits and raw
meat of animals; no anxiety, no tension, no status. With the passage of time, people learnt the
use of fire and started leading a nomadic life and then a family life. There was no inequality
between men and women. With the inception of family life, society came into existence.
Spontaneous change and development of human mind, thought and reasoning began to take
place from the pre-social stage to social stage, and it had its continuity. The status of women is
mostly determined by the structure of the society or family. In the patriarchal society, the
descent of a family is traced through the father and in the matriarchal family; it is traced through
the mother.

The economic sphere is a very important one, and the social life of people depends on it. As in
ancient times, even at present agriculture forms the main source of national economy even
though, industrial sector remains vital. Land is viewed increasingly as a form of social
insurance, something to fall back on in hard times. Land is a form of property, an immovable
property. In most of the States in India, women have no right over property. The areas where
matrilineal system is existing, women have equal rights with men regarding hereditary
property.
Money, wealth and property of both movable and immovable nature give a much-needed
support and happiness to those who possess them. They increase one’s dignity and self-esteem
besides determining one’s social status. In any society, property ownership and property
inheritance rights should be shared by men and women equally as life-partners and as
coparceners, to ensure the development of a just society. But, in general, women are regarded
as the property of others in a patriarchal society. In our country, in most cases, the position of
woman is like that of a slave. In her husband’s place, she has neither liberty nor rights to take
part in decision making. She must work day and night which affects her health, which also has
an adverse effect on the family, especially on the mental health of the children.

The difficult question of implementing the 2005 Act remains. Campaigns for legal literacy;
efforts to enhance social awareness of the advantages to the whole family if women own
property; and legal and social aid for women seeking to assert their rights, are only a few of the
many steps needed to fulfil the change incorporated in the Act. Though a lot has been done, a
lot remains to be done, and the Indian woman has miles to go before she attains her full rights
and status in the society and in the home.

Women may still encounter difficulties, and indeed, they do which are more of a psychological
nature. These difficulties are from deep-rooted feelings and conceptions which persist and
linger due to an innate conservatism of the human mind. But society must offer conditions of
life which will help the woman who wishes to make an independent living to do so and
accelerate them to play an active role in public life. The future must be a socialist world in
which there will be no private property.

BIBLIOGRAPHY

BOOKS:

1. Aggarwal, Namita, Women & Law in India, New Century Publication,

Delhi, 2002

2.Aggarwal, R.K., Hindu Law, Central Law Agency, Allahabad, 2007

3. Altekar, A.S., The Position of Women in Hindu Civilization from
prehistoric times to the present days, Motilal Banarasi Das, Indological

Publications, Delhi, 1987.

4. Das, P.K., Handbook on Hindu Succession (Property Rights of Women

and Daughters) Universal Law Publishing Co. Pvt. Ltd., Delhi, 2007

5. Das, P.K., New Law on Hindu Succession, Universal Law Publishing Co.

Pvt. Ltd., Delhi, 2006

6. Diwan, Paras, Modern Hindu Law, Allahabad Law Agency, 1993

JOURNALS/ ARTICLES

1.Annual surveys of Indian Law Institute 2000-2009

2. Family dwelling house under S.23 The Hindu Succession Act, 1956,

Verma, Girija Shankar, All India High Court, 2005, Jan.

3. Family Law and Succession, Kusum, An Annual Survey of Indian Law

1987 to 1995

4. Family Law and Succession, Sexena, Poonam Pradhan, Annual

Survey of Indian Law Institute, 2002

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