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BATCH 2020- 25
ROUGH DRAFT
A DESCRIPTIVE STUDY ON
“PROPERTY RIGHTS OF WOMEN UNDER HINDU LAW”
FAMILY LAW- II
SUBJECT CODE: 10FL
Submitted to: Submitted by:
Mr. Yogendra Singh Amarjeet Prakash
ASSISTANT PROFESSOR SEMESTER-IV B.A.LLB Hons, FACULTY OF LAW ROLL NO- 92001040014 MARWADI UNIVERSITY MARWADI UNIVERSITY RAJKOT, GUJRAT RAJKOT, GUJRAT
TABLE OF CONTENTS
- DECELERATION…………………………………................................…………………....
- SUPERVISOR’S CERTIFICATE ……………………....................................……………….
- ACKNOWLEDGMENT……………………………...…………........…………............…......
- LIST OF THE CASES..........................................................................................................
- CHAPTER- 1 INTRODUCTION
- 1.1 REVIEW OF LITERATURE.........................................................................................
- 1.2 STATEMENT OF RESEARCH PROBLEM......................................................................
- 1.3 OBJECTIVES.............................................................................................................
- 1.4 HYPOTHESIS............................................................................................................
- 1.5 SCOPE&LIMITATIONS......................................................................................
- 1.6 RESEARCH DESIGN..................................................................................................
- 1937 ………………………………...……………………………………………………... CHAPTER- 2 PROPERTY RIGHTS UNDER THE HINDU WOMEN RIGHT TO PROPERTY ACT,
- CHAPTER- 3 PROPERTY RIGHTS OF WOMEN UNDER THE H.S.A 1953 …………..……...
- CHAPTER- 4 RECENT CHANGES BROUGHT ABOUT BY H.S.A. 2005 …………………….
- CHAPTER- 5 CRITICAL ANALYSIS OF RECENT AMENDMENT TO THE H.S.A……………
- CHAPTER- 6 - CONCLUSION………………………………………………………………..
- BIBLIOGRAPHY..............................................................................................................
SUPERVISOR’S CERTIFICATE
This is to certify that the work embodied in the accompanying project entitled “PROPERTY RIGHTS OF WOMEN UNDER HINDU LAW” has been carried out entirely by Amarjeet Prakash under my direct supervision and guidance and that the candidate has fulfilled the requirements of the regulations laid down for the partial fulfilment of B. A. LLB. Hons. Degree examination in the course Family Law - 1 (Semester- III), Faculty of Law, Marwadi University. Mr. Yogendra Singh Faculty of Law Marwadi University
ACKNOWLEDGEMENT
History of all great works into witness that no great work was ever done without either or passive support of a person surrounding and one’s close quarters. Thus, is not hard to conclude how active assistance from senior could positively impact the execution of a research project. I am highly thankful to our learned faculty Mr. Yogendra Singh & Dr. N. Bangkim Singh for their active guidance throughout the completion of project. Last but not least, I would also want to extend my appreciation to those who could not be mentioned here but have well played their role to inspire me behind the certain.
CHAPTER- I
INTRODUCTION
“Women constitute half the world’s population, perform nearly two thirds of its hours, and receive one tenth of the world’s income and less than one hundredth percent of the world’s property.”^1 The first chapter provides an overview of the subject, namely Property Rights of Women in Hindu Law: A Critical Study. It illuminates the historical context of women's property rights in India. Additionally, it contains the technique, hypothesis, and objective of this study. Women have a critical part in the lives of all human beings. Securing her improved birth rights would imply a brighter future for our community, family, and each person. Gender inequality manifests itself in a variety of ways, but the most vexing one concerns women's property rights. Women were thought to have a low social rank in ancient Hindu culture and were treated as dependents with little property rights. According to the traditional Mitakshara Law, a son obtains a right and interest in the family property at birth. According to this school, a son, grandson, and great grandson all belong to a class of coparceners based on familial births. In the Mitakshara Law, no female is a member of the coparcenary.^2 Women have a special place in all societies, developed or emerging. This is especially true given the different roles they perform throughout their lives as a daughter, wife, mother, and sister. Despite her contribution to the lives of each individual human being, she remains a member of a class or group within society that is disadvantaged due to a variety of societal hurdles and impediments. She has suffered oppression at the hands of those who govern society. Indian women's status is no better than that of their counterparts in other regions of the globe. On the one hand, she is revered by all: she is worshipped and regarded as the personification of tolerance and morality. On the other hand, women have suffered innumerable sorrows, afflictions, and horrors at the hands of a male-dominated society. “Not only has woman been denied true social, economic, and political justice, but as a ‘weaker sex,’ (^1) This observation from the United Nations Organizations envisages that the women constitute half of the world’s population still they suffer discrimination today in every walk of life. The minute study of world’s women specified records and statistics reveals that the women comprise 66% of the world’s literacy and 70% of the world’s poor. (^2) K.M. Kapadia, Marriage and Family in India 80 (1955).
she has been mistreated and used to the fullest degree possible and subjected to ignorance at all levels by a male-dominated society”^3_._ The Indian Constitution's Preamble provides for social, economic, and political justice, as well as the proclamation of man and woman equality via various clauses, such as Fundamental Rights, Directive Principles of State Policies. It envisions the dawn of a new era in which women as Indian citizens are treated equally to men in all spheres of life. According to the Universal Declaration of Human Rights (UDHR), the acknowledgement of the inherent dignity and unalienable rights of all members of the human family is the bedrock of global freedom, justice, and peace. Similarly, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is the cornerstone of women's rights, having been ratified by 166 nations, including India.^4 Women have a critical part in the lives of all human beings. Securing her improved birth rights would imply a brighter future for our community, family, and each person. Gender inequality manifests itself in a variety of ways, but the most vexing one concerns women's property rights. This inequality in property rights based on gender dates all the way back to prehistoric times. In India, women are revered and worshipped as the embodiment of all qualities on the one hand, but are discriminated against and mistreated on the other by the male-dominated society's rules. Even after all civilizational and cultural revolutions, she has not been accorded her true position and standing in society. Women continue to be exploited at home and in public in the majority of the nation. Male supremacy and oppressive circumstances for women continue to be widespread. Complete personality development, basic freedom, and equal involvement of women in political, social, economic, and cultural spheres are necessary components of national growth, which is contingent on social and familial stability. Discrimination on the basis of gender generates discontent.^5 Women were thought to have a low social rank in ancient Hindu culture and were treated as dependents with little property rights. According to the traditional Mitakshara Law^6 , a son obtains a right and interest in the family property at birth. According to this school, a son, (^3) C.A. Gurudath, (ed.), Women, Child Law and Society, 119 (2006). (^4) The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women, consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. (^5) Aftab Alam, Human Rights in India: Issues and Challenges 76 (1998) (^6) K.M. Kapadia, Marriage and Family in India 80 (1955).
the fundamental goal of Indian society's inheritance procedures has been to retain property, particularly landed property, intact for male successors.^8 Apart from inheritance, boys have the right to split joint family property, but girls do not. For instance, if the joint family property consisted of a dwelling home, boys (as a component of the coparcenary) might claim its division, while daughters were only granted the right of residence, not ownership or possession. As a result, the Hindu Succession Act, 1956 was far from a gender neutral statute.^9 The Indian Constitution's Preamble provides for social, economic, and political justice, as well as the proclamation of man and woman equality via various clauses, such as Fundamental Rights, Directive Principles of State Policies. It envisions the dawn of a new era in which women as Indian citizens are treated equally to men in all spheres of life. Indeed, it is a magnificent statement that brings one era to an end and establishes the ideas upon which the next age will be founded.^10 Gender disparity persisted in the property rights accorded to females even after the inception of the Indian Constitution, despite the fact that land and property ownership enable women to be economically independent and secure. Property Rights of Women in the Vedic Period: During the Vedic period, the Brahmins held the highest position in the socio-religious hierarchy, and they used Dharmasastras^11 to legitimize their dominance.The Dharmashastras were believed to be based on Hindu religious writings such as the Vedas and Smritis, as well as accepted practices and good conscience.^12 Dayabhaga, a comprehensive compilation of all the Smritis composed by Jimutvahana in the 12th Century, gained widespread recognition in Bengal. The Mitakshara, which was composed again in the 12th century, is a running commentary on one of the Smritis named Yajnavalkya, which was acknowledged across the rest of India. Later, these two elements (digest and commentary) developed into two distinct (^8) J. Dancan. M. Derret, A Critique of Modern Hindu Law, N. M Tripathi Pvt. Ltd, Bombay, (1970), p.193. (^9) In case of a Hindu woman dying intestate, all her property devolves equally upon her sons and daughters and husband, if alive. If she has no children or other heirs having first right to her property, then the property devolution takes place according to the source of acquisition. (^10) The Constitution of India, 1950 (^11) K.M. Kapadia, Marriage and Family in India 80 (1955). (^12) The Vedas were religious hymns, perhaps 3000 years old, and the Smritis were collections of rules of conduct and explanatory principle based on Vedas. The Smritis comprised texts, such as Manu Smriti which was written between 300 BC and 300 AD and later on commentaries and digests.
schools known as Mitakshara and Dayabhaga. These two schools had divergent views on inheritance.^13 In early Vedic civilization, women had the same standing as males. Gender equality was full in all sectors of life, and women were treated with great respect and had major rights and benefits. In those days, girls had the same educational opportunities as males. During the Vedic era, studies and rituals began with the 'Upanayana Samskara' thread ceremony. According to Rig Veda, those who wore holy thread were regarded as competent in doing a variety of serious professions. Numerous passages in the Vedic literature clearly suggest that women engaged in Upanayana Samskara, read the Holy Scriptures, and chanted Mantras. In terms of the institution of marriage, women also had a significant voice in selecting their life spouse. The famed marriage arrangement devised by'Svayamvara' originated in Vedic literature. It was planned that man would be incapable of performing numerous religious rites on his own. The presence of the wife was required for the conduct of religious rituals and ceremonies. A man was regarded to be incomplete without a woman. The woman was supposed to be her husband's 'Ardhanagini,' or half. The belief that Hindu women are not inheritable began with a treatise by Baudhayana, the putative founder of one of the Black Yajurveda schools. He was accountable for women's lack of inheritable rights. He could never view women as capable of self-sufficiency. Women, he said, were not recognised to be eligible for liberty. To defend his position, he stated: "The father protects a woman during her infancy; the husband protects her during her youth; the son protects her during her old age; a woman should not have independence." Later commentators and digest writers, for example, Haradatta and King Partap Rudra Deva, author of Saraswati Vilasa, and Mitra Mishra, author of Virmitrodaya, both used the same rationale to deny women inheritance rights. Though historians eventually concluded that the Vedic scripture mentioned by Baudhayana had nothing to do with women's inheritance rights. They believe that Baudhayana referenced this book just to bolster his own position on women's inheritance potential.^14 (^13) Jana Matson Everett, Women and Social change in India, Heritage Publishers, New Delhi (1978), p.142. (^14) P.C Jain, Heritable Rights of Hindu Female: General Survey, Journal of Legal Studies, University of Rajasthan, Vol. 28 (1997-98), pp. 3-6.
inheritance is unencumbered regardless of whether the bequest is ancestral or independent property of the father. In both circumstances, they claim it as a natural right. Where the property is ancestral, their rights are equal and valid during the father's lifetime. Where it is not ancestral, it is an unequal or subordinate right that, in the absence of a determination by the father, is effective for succession purposes. In other words, they take only on the basis of survival.^16 According to the text of Yagnavalkya, inheritance is limited to those who leave no male heirs. As a result, the Mitakshara law of inheritance is limited to property held in absolute severity by the previous owner. This property will include the following: (1) self-acquisitions by the last male owner; (2) property inherited from his collaterals, mother, or maternal grandfather; (3) property allotted to him in exchange for his share in a partition with his coparceners; and (4) property vested in him exclusively as the last surviving coparcener.^17 Property rights are reserved for male members of the Mitakshara School. The Supreme Court said in State Bank of India v. Ghamandi Ram^18 that the textual authority of Mitakshara expressly states that joint family property is kept in trust for the joint family members who are now alive and those who will be born in the future. Coparcenary Property as a Concept: Coparcenary property is defined as “unity of title, possession, and interest.” To further define the word, a Hindu Coparcenary is a considerably smaller entity than a Hindu joint family. It is limited to those individuals who acquire an interest in coparcenary property by birth, namely the sons, grandsons, and great-grandsons of the property's current holders. Stridhan's concept: As the name implies, Stridhan is composed of two words: Stri+Dhan. Thus, Dhan of the 'Stri' refers to women's property. The phrase 'Stridhana' appears for the first time in the Smritis and literally translates as 'woman's property,' although many sages employ the term in a variety of ways. Stridhana is a significant topic in Sanskrit law literature. From the earliest ages, women's distinct property was referred to as Stidhana. The word 'Stridhana' first appeared among the (^16) Neelam Upadhayay and Rekha Pandhay, Women in India, Past and Present 17-18 (1990). (^17) Urusa Mohsin (Dr.), Women's Property Rights in India 12 (2010). (^18) State Bank of India v. Ghamandi Ram AIR 1969 SC 1330.
Smritis in Gautama's Dharmasutra and literally translates as 'woman's property'. The Mitakshara and subsequent scholars interpret the word in its etymological connotation to include all types of property acquired by a woman, regardless of the degree of her rights over it. Jimutavahana defines the phrase as a woman's property over which she retains complete authority even throughout her husband's lifetime. Women's Succession and Inheritance Rights: Due to the fact that the family was normally undivided, the opportunity for recognising women's rights was rare. The rule in Manu that a wife, a son, and a slave are proclaimed to be without property simply indicated that they were not self-sufficient.^19 However, Manu subsequently identified six varieties of Stridhan.^20 Stridhan's early significance demonstrates that women had important rights despite their inferior status to males. To be eligible to inherit from Stridhan, the first acquirer was deemed a new stock of ancestry, and women were favoured above males. The rationale was that when it came to inheriting men's property, males were favoured over females as heirs, and when it came to inheriting women's property, females were preferred over males as heirs. However, neither party was fully barred from inheriting the other's property. The rights of women in the family to inherit were always rather strong, and on the whole, it seems that some later interpreters erred in inferring negative implications from the older Smritis' imprecise allusions to women's succession. Vijnanesvara never said that women are incapable of inheriting. At least two thousand years ago, the widow's right to succeed as her husband's heir was acknowledged. Manu, Yajnanvalkya, Vishnu, Brihaspati, and Katyayana, among others, all acknowledge her right to succeed to her spouse. According to Vijnaneshwara, the widow is entitled to inherit her husband's property if he died, was separated and never rejoined, and left no male issue. According to the Mitakshara scripture, "it is established law that a married woman who is chaste inherits the whole estate of a man who dies without male offspring after being parted from his co-heirs and not later reunited with them."^21 Except when the Hindu Women's Right to Property Act, 1937 governs the succession, the widow will only inherit in the absence of male offspring. In the absence of the widow, the daughter inherits. Her claim was established on the basis that she produced boys capable of (^19) Manu, VIII, 416. (^20) See Manu, IX, 194. (^21) Mitakshara II, 1, 39.
determined societal standards. Without a doubt, the Hindu Succession Act, 1956 was revised in 2005 to further enhance the proprietary position. The amendment attempts to close gaps from 1956, yet the issue remains whether women would use the privileges granted to them by this Amended Act. The purpose of this work was to examine the impact of the Hindu Succession Act, 1956 (together with its 2005 Amendment Act) on women's proprietary rights, to identify any remaining gaps in the Act, and to propose recommendations to make it more effective. Several parts from the text have also been used by the Karnataka High Court in considering property cases involving women.
- P M Bakshi in his book “The Constitution of India” provided an article-by-article discussion on the Indian Constitution. This revised fifteenth version incorporates legislative changes from all the way back to 1951 and the most recent, The Constitution (One Hundred and First Amendment) Act, 2016, as well as all significant Supreme Court rulings through 2017. The Indian Constitution has 395 articles and 12 schedules. Each article includes annotations for the reader's convenience and clarity. This book details the nation's government structure and a comprehensive list of beliefs. It is divided into 22 sections that serve as the framework for defining fundamental political concepts, establishing the protocols followed by government entities, and establishing the fundamental rights and responsibilities of the nation's residents. Each area is separated into articles, with certain sections also including chapters, owing to the complexities of subjects such as Finance, Property, Contracts, and Suits. Articles and Journals Many articles and journals have been studied in the course of research work and the best parts of those articles have been included with proper citations.
STATEMENT OF RESEARCH PROBLEM
Social justice requires equitable treatment of women in both the economic and social spheres. It is wrong to exclude daughters from coparcenary property ownership only on the basis of their gender. Additionally, if she is not a coparcener, she cannot ever become a 'karta'. As a
result, improving their economic and social circumstances by granting them equal rights from birth is a long-felt societal necessity.
OBJECTIVES
The proposed study is geared to achieve the following objectives: -
- To shed light on the concerns surrounding women's property inheritance in Hindu culture.
- To examine the components of property inheritance in Indian society.
- To identify discrepancies between current legal standards governing women's property rights and the updated law's implementation.
- To come up with specific recommendations or conclusions.
HYPOTHESIS
The following hypothesis would be examined in this study: -
- The main reason is discrimination/injustice against women under Hindu Law when it comes to women's inheritance rights, denial of equal participation in ancestral property, and so on.
- Due to the absence of comprehensive law granting equal inheritance rights on Hindu women, they face discrimination.
SCOPE & LIMITATIONS
The purpose of this research is to examine and compare women's property rights under Hindu codified laws (including the amended laws). The goal of this study is to ascertain the factors that contribute to the issue of Hindu female property inheritance in India. The scope of the research is for the benefit of the whole Hindu society, however the area of the study is limited
CHAPTER- 2
PROPERTY RIGHTS UNDER THE HINDU WOMEN RIGHT TO
PROPERTY ACT, 1937
This chapter will examine the property rights of women under the Hindu Women Rights to Property Act, 1937. Customs were formerly recognised as a significant source of law. Local customs were held in great regard and were considered as a significant source of law under the samritis. The often- used terminology in samritis, such as achara, sadachara, shishtachar, and loka sangraha, all refer to different aspects of custom. Acceptance of these regional customs differed by area. In terms of women's rights, southern states provided women far greater privileges via their native norms. Additionally, both Yajnavalkya and Vijnaneshwara, who expanded their framework on women's right to property, are considered to have been from the southern (Dakshina) area. Even in Manusmriti, the right to property is maintained. Yajnavalkya, Katyayana, and Narada were among the jurists who advanced the notion of women's right to property. During their lifetimes, women's property rights developed and were defined.^22 The Smritikars invented a new form of female property, the stridhana. Since ancient times, stridhana has been considered a distinct property of women. Jimutavahana even said that a woman has complete authority over her property after marriage.^23 Her portion consists of the jewellery and riches she gets from her father and family at the moment of marriage. Her own and her husband's family presents would be added to her own. Gautama Dharmasastra is credited with coining the term "Stridhana share" for women's property. Mayne further said that the bride price originally owed to the parents seems to have been moved to the wife's dowry. Apart from this stridhana, a married lady might accept presents from strangers and contribute to society by doing other specialised tasks. Nonetheless, she lacked ultimate control over her property due to her limited ability to dispose of it. This was done to maintain control over her. (^22) Kanaka Latha Mukund, Turmeric Land, women’s property rights in Tamil society since early medieval times, XXVII/17, Economic and Political Weekly, WS-2 (1992). (^23) Alladi Kuppuswami (ed.), Mayne’s Hindu law and Usage, 12th edn., 1986, p.840.
Without control, she would develop independence. As a result, it became evident that women lacked property rights throughout the ancient era. Nonetheless, the lady was permitted to retain her Stridhana as separate property. Manu, like Gautama, identified seven types of stridhana, which consisted of presents from kin. Saudayika stridhana is the property she acquired before to or after marriage from her father's and husband's families. A woman was granted total ownership of her property, which means that no one, including her father, mother, brother, spouse, or son, may take it away from her.^24 If the husband borrowed money from her, he was required to reimburse it with interest. As a result, it includes a caution that male members should refrain from interfering with the women's possessions. The property she gained through her own efforts was designated as asaudayika stridhanam, which is under her husband's jurisdiction. This also resulted in the formation of her distinct property. The only difference was that she had to acquire her husband's agreement before disposing of it. She was completely free to enjoy her land. Certain practices existed among the Dravidians in southern India about the gift of land to the bride. The daughter may utilise this revenue to meet her own daily expenses. This was her stridhanam, which she passed on to her daughter. Manjalkani was the name given to the land.^25 This would provide her with an income to meet her basic necessities, most notably the purchase of turmeric and vermilion after marriage. Similarly, when a husband remarried, he was customarily required to give up 1/3 of his possessions. It was referred to as patnibhagam. Additionally, in coastal Andhra Pradesh, a tradition of granting land to the daughter upon marriage occurred. Katnam was the name given to it.^26 This tradition was unusual in that women retained authority over this property even after marriage. Similarly, 13% of Karnataka Veerashaiva women acquired property from their mothers, which was handed down through future generations for daughters. It's worth noting that women inherit this trait, but boys cannot.^27 Additionally, Sudra women in the Dharwar area have property rights. Despite this, her independence was constrained by her non-participation in decision-making, particularly financial concerns, and by the fact that it was a patriarchal idea. (^24) Gill K, Hindu women’s Right to Property in India, 301. (^25) Kanaka Latha Mukund, Turmeric Land, women’s property rights in Tamil society since early medieval times, XXVII/17, Economic and Political Weekly, WS-2 (1992) at 2. (^26) Flavia Agnes, Law and Gender Inequality: The Politics of Women's Rights in India, 19 (Oxford University Press, New Delhi, 1999). (^27) Mullati, L, The Bhakti movement and the status of women: A case study of Virasaivism, 106 (Abhinav Publications, New Delhi, 1986).
