The article examines the evolution of the rights of women in Hindu Law with special reference to the Hindu Succession Act. The article briefly deals with the Rights of a Hindu woman with respect to marriage, divorce laws and the law of adoption.
Gender inequality in India manifests itself in a variety of ways, but the most common is in the area of effective property rights. Various laws have been passed to eliminate women’s economic reliance and provide them high status and equality. In addition, the Constitution of India ensures equality, bolstering women’s property rights and access to economic resources. Despite all of this, women’s situation remains unchanged. Women’s deplorable condition is due to illiteracy, lack of knowledge, and non-implementation of women’s welfare law. Due to family standards, societal shame, and related expectations, even women themselves are less interested in enforcing their rights.
Woman, a girl, a wife, a mother, a grandmother, the overall woman is a key to a family. The world can never be completed without a woman. Indeed, the woman plays a significant role in the life of every human being. Securing her better birth rights would mean giving a better future to our own society, family, and to every individual.
In India, a Woman is seen as divine and worshiped as the embodiment of all the virtues on one hand but on the other hand, she is discriminated against and victimized by the norms created by the male-dominated society. She has not been given her due and legitimate place and status in society even after all the civilization and cultural revolutions. Like many other countries of the world, a good number of women in India do enjoy high status but countless women still continue to occupy a lonely, disadvantaged, and very humiliating position at the base of the pyramid. The exploitation of women at home and outside continues in most parts of the country.
In Indian modern society, these gender inequalities facet in different forms, but the most highly one percept relates to effective property rights. This disparity in property rights pertaining to gender spells from ancient times.
History And Origin
Women’s right to property has been recognized as an important development issue. Property rights for women can have an impact on decision making, income pooling, acquisition, and women’s overall role and position in the community. Moreover, the land is a critical resource for a woman when the household breaks down; for example, in the event of desertion by husband, abandonment, divorce, polygamous relationships, illness, or death. The perpetuation of female property and inheritance rights helps not only to mitigate negative economic consequences experienced by women and their households but also promotes women’s economic security and empowerment, thereby reducing their vulnerability to domestic violence, unsafe sex, and other health hazard factors.
Women during the Vedic times were held in great regard and enjoyed various rights and privileges. Women shared equal rights and obligations with her husband. However, the only discrimination they were subjected to was in matters of inheritance and succession in the father’s property. Women, for long, have been subjugated in property inheritance. This has become a major concern in creating the right balance in gender equality. As women’s right to property inheritance is limited and frequently violated, in the mid-1950’s the Hindu Personal laws were overhauled, banning polygamy and giving them the right to inheritance, adoption, and divorce.
Under Hindu law, sons have an independent share in ancestral property. However, daughters’ shares are based on the share received by their fathers. Hence, a father can effectively disinherit a daughter by renouncing his share of the ancestral property. But the son will continue to have a share in his own right. Additionally, married daughters, even those facing marital harassment, have no residential rights in the ancestral home. Hence, during the British rule, certain enactments were made such as the Married Women’s Property Act, 1874, The Hindu Disposition of Property Act, 1916, The Hindu Inheritance (Removal of Disabilities) Act, 1928, The Transfer of Property Act, 1882, The Indian Succession Act 1925, The Hindu Women’s Rights to Property Act, 1937, etc. to uplift the position of women and make them economically independent.
The Government of India has also provided specific institutions like the National Commission for Women, the Department of Women and Child Development, etc. In addition to this, India follows the guidelines recognized in a variety of International Legal Instruments such as International Covenants on Economic, Social, and Cultural Rights and on Civil and Political Rights. United Nations Commission on Human Rights Resolution 2002/49. International Conventions like the Convention on Elimination of All Forms of Racial Discrimination (CERD), 1965. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979 is often described as an International Bill of Rights for Women. The Convention highlights in Article 16 that: “State parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women.”
Explanation With Statues
Marriage and Divorce Laws
The ancient Hindu Law discriminated against women in all respects. The marriage laws were not equal for men and women. The nature of Hindu marriage is described under the Vedas. According to Vedas, a Hindu marriage is an indissoluble union till eternity. It is defined as a union of “bones with bones, flesh with flesh and skin with skin, the husband and wife become as if they were one person. The Hindu Marriage Act, 1955 has removed these disparities to a large extent. It has made monogamy the rule for both men and women. A woman can dissolve her marriage and freely enter into another marriage according to law. The Hindu Marriage Act, 1955 has enumerated the grounds for divorce. Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for marriage. It says both the parties to the marriage should have the capacity to give consent to the marriage.
Hindu marriage is a sanskara or a Sacrament. It is indissoluble in the sense, the woman cannot ask for another husband, even if he is cruel, drunkard, impotent, insane, or whatsoever. It is eternal and continues for life as that she cannot have another husband even after his death. Husband and wife become one person as she cannot have any individuality of her own. But the husband could enter into the sacramental fold of marriage any number of times because polygamy was permitted under Hindu law before the enactment of the Hindu Marriage Act, 1955.
Section 12(c) says that if the consent was obtained by force or fraud then the marriage is voidable. If the consent is not obtained at all then it will not affect the validity of the marriage. This applies both to the husband and the wife. But practically, what happens in the male dominant society is that only the consent of the boy is obtained, and the consent of the girl is ignored. The boy may be much older than her, absolutely not suitable for her but without taking her consent the marriage takes place. However, on this ground, the marriage cannot be dissolved. She has to bring it under the grounds for dissolution of marriage provided under the Hindu Marriage Act, 1955, otherwise, dissolution of marriage is not possible. If the marriage was solemnized without her consent or against her wishes, she still continues to be in the marriage fearing society or because of parental pressure.
Law of Adoption
The Shastri Hindu Law of adoption differs from one school to another. But the Hindu Adoption and Maintenance Act, 1956 introduced uniformity in the law of adoption among Hindus. Under the Shastric Hindu Law, a Hindu woman was permitted to adopt a child only under rare circumstances. Her rights to adopt a child were very limited. Though under the Hindu Adoption and Maintenance Act, 1956 the right of a woman to adopt a child is recognized, discrimination against women continues. According to the Hindu Adoption and Maintenance Act, 1956, a married man can adopt but a married woman cannot adopt during the subsistence of the marriage. Now this disparity has been removed by the Personal Laws Amendment Act, 2010
To overcome all these anomalies and bring women to par with men, the then government enacted Hindu Succession Act in 1956. The Act enacted in 1956 was the first law to provide a comprehensive and uniform system of inheritance among Hindus and to address gender inequalities in the area of inheritance. It was, therefore, a process of codification as well as a reform at the same time. The Hindu Succession Act was the first post-independence enactment of property rights among Hindus. The Hindu Succession Act, 1956 was made to codify the law relating to intestate succession among Hindus.
It applies to both the Mitakshara and the Dayabhaga schools. The retention of the Mitakshara coparcenary without including females in it meant that females couldn’t inherit ancestral property as males do. If a joint family is divided, each male coparcener takes his share, and females receive nothing. Only when one of the coparceners dies, a female gets a share of his share as an heir to the deceased. Thus, the law by excluding the daughters from participating in coparcenary ownership merely by reason of their sex not only contributed to an inequity against females but has led to oppression and negation of their right to equality and appears to be a mockery of the fundamental rights guaranteed by the Constitution. Hence, this very fact necessitated a further change in regards to the property rights of women, and which was done by the Hindu Succession (Amendment) Bill, 2004.
The Hindu Succession (Amendment) Act, 2005: The Hindu Succession (Amendment) Act, 2005 seeks to make two major amendments in the Hindu Succession Act, 1956. First, it is proposed to remove gender discrimination in section 6 of the original Act. Second, it proposes to omit section 23 of the original Act which disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. The Hindu Succession (Amendment) Act, 2005 is landmark legislation in the history of India. After 50 years, the Government finally addressed some persisting gender inequalities in the 1956 Hindu Succession Act (1956 HSA), which itself was path-breaking.
The 2005 Act covers inequalities on several fronts: agricultural land; Mitakshara joint family property; parental dwelling house; and certain widows. From past to present, there is a drastic change in the lives of women, now women with their household work also contribute in the earning of her family and the economy of the country. She lacks nowhere behind the man. Things will take time to get systematically as it is already mentioned that the government can make laws but utilization is in one’s hands. Women must never be considered the brittle part of society as their household work is more difficult than men’s office work.
Before 1956, there were two kinds of women’s property,
- STREEDHAN: The word ‘streedhan’ means women’s property. According to Smritikars, the streedhan constituted those properties which she received by way of gift from the relations which included mostly movable property (though sometimes a house or a piece of land was also given in gift) such as ornaments, jewelry, and dresses.
- WOMEN’S ESTATE: As per Section 14 of the Hindu Succession Act, 1956, the women’s estate has been abolished.
Prakash v. Phulavati & Ors.
The Supreme Court in this case ruled that the Amendment Act was prospective. As a result of the Amendment Act’s passage, daughters will be coparceners and have an equal stake in a joint Hindu family property as males. The following point from the case should be noted:
- To claim a part of the joint Hindu family property, the daughter must be living in 2005.
- If the daughter dies before the amending legislation takes effect, her legal heir would be unable to claim a portion of the joint Hindu family property.
- To guarantee an equal position in the coparcenary property, the daughter’s father must also be alive at the time of the enactment.
- The daughter’s claim as a coparcener in the joint Hindu family property after the 2005 Amendment would not impact the alienation, disposal, or transfer of any joint family property or a registered division made before the amendment act.
India doesn’t have a Uniform Civil Code, which means the law in matters about inheritance and sharing of property differs for people from different faiths. The two important laws regarding property share are the Hindu Succession Act, 2005, and the Indian Succession Act, 1925.
- The Hindu Succession act, 2005: Applies to cases without a will i.e intestate Hindus, Sikhs, Buddhists, and Jains.
- The Indian Succession Act, 1925: Transfer of property of Hindus and Muslims by a will (testamentary succession), Christians, Parsis, and Jews are governed by The Indian Succession Act.
- Muslim Personal Law (Shariat) Application Act, 1937: Applies if there is no registered will. Muslims rely on the laws of the sect they belong to.
Other than this there are different Acts of different religions relating to marriage, divorce, and adoption.
However, notwithstanding the revolutionary provisions of the Hindu Succession Act of 1956, Hindu women in Indian society continue to be deprived of property rights in general. In actuality, it was only a piece of legislation. Even though the Act introduced revolutionary changes, it has been largely ignored by family members in reality since the stipulations are incompatible with established Hindu social ethos. There because of a clear distinction between the law as it is and the law as it is applied. It is frequently harmed by incidences of blatant prejudice. All of these are admirable measures in theory, but the challenge rests not in recognizing women’s property rights but in enforcing them.
Based on a socialist approach, realistic practice will confront several challenges due to people’s orthodoxy and traditional societal norms. Let not the grandiose guarantees in our constitution or the generous endowments in our enactments deceive us for a moment or distract us from the reality that we live in a society that has an institutionalized social hierarchy, where men have control over women, where women have internalized lower gender status as a personal failure, and where men have internalized lower gender status as a personal failure.
Emancipation for women is still a long way off. When it comes to the topic of fairer sex, nothing is fair. Even though the law of inheritance is increasingly changing, women are still not at ease.
What rights do Hindu women have over their husbands’ property?
The property of the husband is equally divided between the wife and children. Widowed women also have equal rights to their predeceased husband’s property, as their children. If alimony and maintenance are settled, divorced women will have no claim over the property of the former husband even though their children do.
According to sec. 6 of HSA, equal status was granted only to daughters whose fathers are alive when the amendment came into force. However, in the case of Vineeta Sharma v. Rakesh Sharma, the apex court held that daughters have an equal share of the father’s property in her own right by birth.
The 2005 amendment of the Hindu Succession Act made a tremendous change. This amendment put an end to the years-long discrimination against the daughters. After this amendment, the daughters become coparceners by birth. It means they will get an equal share in their ancestral property as the son will get.
Which section deals with the right of women to adopt a child?
Under sec. 8 of Hindu Adoption and Maintenance Act, any female Hindu of sound mind above the age of majority can adopt any child in adoption even if she is unmarried.
What is Streedhan?
The word ‘streedhan’ means women’s property. According to Smritikars, the streedhan constituted those properties which she received by way of gift from the relations which included mostly movable property (though sometimes a house or a piece of land was also given in gift) such as ornaments, jewellery because of dresses.
 CIVIL APPEAL NO.7217 OF 2013.