Position of Women Under the Indian Succession Laws

The position of women in any society is the reflection of the level of civilization that society is at. In India, the position of women in society has seen both frequent and slow changes.

Today, women in India are at a position from where they can walk hand in hand with the rest of the world.  While, earlier a girl child was considered a burden on the family, today a lot of parents welcome a girl child as an asset. We have come to realise that women are no inferior to men and hence should have equal rights as men. We are trying to achieve this equality with amending our laws, and one of most effective change has come from changing our property rights.

Let us take a look at the status of women in inheritance laws in India.

From Tradition to Succession

Women in traditional Hindu society have commanded a very revered. A position of respect. However, in spite of this fact, the rights of women over property have been mostly Nil. Until, the Hindu Succession (Amendment)Act, 2005 came into being. The Hindu Succession Act is a landmark law which has drastically improved the position of women in the society. The act has given equal rights to the daughter as that to the son in a family.

So women in a joint family that are governed by the mitakshara law can now claim equal rights over the coparcenary property of their father. Simply, speaking a coparcenary property is the ancestral property that their fathers have inherited. So, now women are equally entitled to ttheir ancestral property.

Initially, The Hindu Succession Act, 1956, did not give daughters equal rights to the ancestral property. The amendment that came into force on September 9, 2005, removed this disproportion. It would not be hyperbole to say that few laws have been as women empowering as this.

Does this mean that the notoriously patriarchal Hindu society has since become more accommodating of gender equality? Not necessarily, simply granting someone a right will not necessarily make the whole process smooth. It will take time before the society is able to accept the new norms completely. It will take time, however, the change has already begun.

Rights of Daughter

Before the enactment of the Hindu Succession Act in 1956, Hindus were governed by the smritees and regional customs. Needless, to say that they changed from region to region.

Under the Mitakshara School of Hindu law, which was in being before the Hindu Succession Act came into being and most parts of the country followed this school. Under the Mitakshara, a woman in a joint Hindu family only had the right to maintenance and not to the inheritance of property.

As a result, if a partition took place in the joint family property, then each male coparcener was entitled to a share. But a daughter would not get a share. Only in the incident of the death of coparcener, the daughter would get a share as one of the heirs.

The Hindu Succession (Amendment) Act, 2005 eliminated this discriminatory practice by granting the following rights to daughters in a family;

All daughters have equal right of inheritance as sons to their father’s property and also have a share in the mother’s property.

Daughters-

  • To a coparcener shall by birth become a coparcener, same as in case of the son;
  • have the same rights in coparcenary property as she would have if she were a son;
  • shall be subject to the same liability in the said coparcenary property as that of a son;
  • shall be allocated the same share as that of a son;

It must also be noted that the Supreme Court in Prakash and Ors. versus Phulavati and Ors has held that the law is not applicable retrospectively will only apply in cases where both the father and the daughter are alive as of the date of commencement of the amendment i.e. 09 September 2005.

Further, while women now have equal rights they still do not have the right to shelter at their parent’s house if they are still married. However, she can claim a right to residence if her husband either deserts her, divorces her or dies.

Also, like men, women too have an absolute right over self-acquired property, and they are free to dispose it off the way they like.

Rights of Wife

A wife has several rights of ownership of the property of her husband while having the exclusive right over her streedhan. She can claim a portion equal to her sons in case the joint family property is being partitioned between her husband and his sons.

She can also claim the portion of her husband in case of the death of her husband. So, the portion which would rightfully come to the husband would, in the event of his death, will go to his wife.

A married women has a right to maintenance and residence at her husband’s place and in case the husband refuses her those rights, she can claim these rights from his family in case he lives in a joint family.

Rights of Mothers

Apart from the rights available to a widowed wife, a widowed mother can also claim maintenance from children who are not dependents.

Right or Family

A lot of women in this country are still faced with this classic dilemma whether they should claim their right or let it go for the sake of family ties. A lot of women in this light choose to ignore their rights under the 2005 amendment. In face as per a study by a women’s right group— Partners for Law in Development, “The de-facto situation continues to be one where women forfeit these rights to avoid strained family ties.” Which is not strange given the Indian situation where girls from a young age are taught to value family for than right. This often leads to a situation where women are often left with nothing i.e. neither family nor property.

Such amendments go a long way in empowering women, and we can only hope that women become more aware of their rights and also claim them.

1 comments On Position of Women Under the Indian Succession Laws

Leave a reply:

Your email address will not be published.

Sliding Sidebar