Women’s Right to Ancestral Property
By Bhavneet Vohra July 29, 2016
India is majorly a patriarchal society. From time immemorial women have always been treated subservient to male dominated society and have been suffering from pain and humiliation since generations. They are denied an access to education, employment, equal participation and opportunity in the society, and even PROPERTY. But the Law in India have changed this ideology tremendously and have provided equal rights to women in their ancestral property.
What was the position of women with respect to Right to Property before the Amendment?
Prior to the Amendment introduced in the year 2005 to the Hindu Succession Act, 1956, the status of women in respect of the Right to Property was as follows:
- According to Section 2 this Act is applicable to any person who is Hindu by religion, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; and to any person who is:
- Sikh, by religion.
- As per the Section 6 of the Hindu Succession Act, 1956 if a male Hindu dies leaving behind his share in Mitakshara Co-parcenary property, such property will pass on sons, son’s son’s, son’s son’sson (Three Generations) through survivorship. According to the Proviso of Section 6 if there are female relatives which can include the following: daughter, widow, mother, daughter of pre-deceased son, daughter of pre- deceased daughter, widow of pre- deceased son, widow of pre- deceased son of a pre- deceased son (These are included in Class 1 schedule), then in these cases the interest of property of the deceased co- parcenary will pass on to his heirs by intestate or testamentary succession and not by survivorship.
- As per the Section 23 of the Act, Special provision regarding dwelling house- According to this section female members had no right to ask for partition of dwelling house. Only male members were allowed to do so. The right to residence also was allowed to female heir in cases she is a daughter and is unmarried or has been deserted or separated from her husband or to a widow.
Before moving on to the current scenario of the Women’s Right to Ancestral Property, we need to learn about some basic concepts for clear understanding which are as follows:
What is the difference between Mitakshara Coparcenary and Separated Property?
Mitakshara School of Law is a wide concept and was developed in the ancient times and was followed from times immemorial. Mitakshara Coparcenary is also referred to as the Ancestral Property. A Hindu who inherits its property from his father, father’s father, father’s father’s father, can be called as ancestral property. On the other hand the property that is inherited from other relation or from other means is known as Separate Property. We need to note one of the most essential features under Coparcenary that male members of the family have birth right in the ancestral property but not daughters.
Which Act initiated against the Right of Women in property?
Widow of the deceased and the respective widows of his son and grandson were also given right in his property.
- Section 3(2) - As per this section the widow had the same and equal interest in the property as her husband.
What is the present position of women in the society related to their rights in the Ancestral property?
Hindu Succession (Amendment) Act, 2005
This Act was basically passed to remove the gender discriminatory provisions that were present in the Hindu Succession act, 1956. The Amendments introduced were as follows:
- Section 6 was amended and restated for better convenience and to remove the gender disparities. (Devolution of Interest in Coparcenary property)-
- The daughters are given equal coparcenary rights as given to a son.
- They can become a coparcener by birth.
But one thing must be noted that though she acquired the equal rights in the joint family property, she is also subjected to the same liabilities as her brother or as the sons.
- The property that is held by a Hindu female can be disposed or alienated according to her own will (Testamentary Succession).
- The interest of a Hindu in the property of a Joint Hindu family shall devolve by Succession (testamentary or intestate) and not by survivorship and daughters would be allotted the same shares as sons.
- Section 23 which did not allow female members of the family to ask for a partition in respect of a dwelling (ancestral) house has been omitted.
In Badriynarayan Shankar Bhandari and others v Omprakash Shankar Bhandari (AIR 2014 BOM 151(FB)) a full bench of the Mumbai High Court held that the amended section will not have a retrospective effect. According to the judgement dated 1st November, 2015 that was given by the divisional bench of Justice Anil R Dave and Justice Adarsh K Goel that retrospective effect could not be attached to the amended provisions of the Hindu Succession (Amendment) Act 2005. As per the judgement of the Court, the father would have to be alive on September 9, 2005 if the daughter is willing to become a co-sharer in the ancestral property along with her male siblings. And moreover it can be clearly inferred from the Section 6 which says “On and from the commencement of the Hindu Succession (Amendment) Act, 2005”. As per the Act, partitions or alienations that have taken place before 20th December 2004 will also not be affected by the Amendment and cannot be questioned and reopened.
Though the above Amendment contributed immensely towards the upliftment of the women in the societal status by granting equal property rights. But to ensure the equality in all aspects between the two sexes, it should be applied to the reality field. More legislation needs to be introduced in order to strengthen women in the society.
Image Source- http://www.deccanabroad.com/wp-content/uploads/2015/11/womenrights.png
Bhavneet Singh Vohra
Vivekananda Institute of Professional Studies
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