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Are We Really Empowering Women Through Property?

by Gagan Preet Kaur (In-house lawyer, Mumbai)


Quoting the famous saying, “A son is a son until he gets a wife, a daughter is a daughter throughout her life”, a full bench of the Supreme Court of India gave a landmark decision in favour of women with regards to the rights of property of Hindu women. The decision gave women the same rights and recognition as their male counterparts by birth.

As women of the 21st century, we are more aware of our legal and constitutional rights and we can voice our opinions when we feel the need to. This recent decision on the amended Hindu Succession Act of 2005, has only reiterated our beliefs. We must applaud the states of Karnataka, Andhra Pradesh, Maharashtra and Kerala who extended these property rights to their daughters by amending the provisions of the old Hindu Succession Act of 1956, under their own state acts, much before the highest court intervened to. After the 2005 amendment, there were several conflicting interpretations of it in various high court judgements till date, and the Supreme Court has finally put the issue to bed and given relief to thousands of female litigants fighting in various courts across the country for their basic right to inherit property.

While the Act of 2005 amend Section-6 of the Hindu Succession Act of 1956 to give recognition to daughters as legal heirs by birth irrespective of whether they were born before or after 2005, it also intended not to reopen any disputes decided prior to 2005 unless there was a question of legitimacy, fraud or duress, or she forced to surrender in giving up her rights. The provisions of the act also clarified that if the daughter had waived her rights to property/share in the property in writing, with the document being registered, the amendment does not allow her to opt out or revise such a document. Similarly, if only a preliminary decree has been passed in an ongoing property dispute the new amendment would have effect.

To save women from further discrimination and to protect their interest, it is also legally required that any oral partition of the family property between the family members has to be registered to avoid bogus transactions. A legal heir to the property relying upon any oral arrangements between the heirs should produce a proper documentary evidence or a decree of court to prove the same.

Even though the adoption laws insinuate that the adopted daughters have the same rights as natural born daughters and the conferment of these rights under the amended provision will have the same effect as that of a daughter by birth, there is no legal precedent to support this as of now.

However, the pressing issue at hand is that even though our courts seem to have become more progressive thinking as far as the rights of women are concerned, the need of the hour is to revisit other provisions which remain unamended. Now, the 2005 amendment brought a change to the extent of bringing daughters at par with the sons from birth. Some other provisions, however, of the Hindu Succession Act (1956) still remain as is which allows for the patriarchal mindset to thrive and discriminates against women. One such example is Section-15 which personifies misogyny giving preference to the heirs of the husband over her own natal family in case the woman dies intestate and without children. Similarly, the property inherited by a daughter from her parents in the absence of any children shall devolve upon the heirs of her father. Not only this, but the property acquired by the woman from her husband or father-in-law, in the absence of any children, will also go to the heirs of the husband. Only if he has no heirs does it devolve on her own family. Such discrimination was seen in one of the cases before the Bombay High Court in which a women lost her husband within 3 months of her marriage and was thrown out of her marital home by her in-laws. She went back to her parents’ house, finished her education and got a job. She acquired a substantial amount of wealth over a period of time. After her death, her mother claimed her property but it was given to her in-laws since it was not her inheritance from her. Nearly under all existing provisions, there is greater preference is given to the male heirs than the female heirs. This is an absolute violation of the right to — there cannot be complete equality if women are not given equality in the matters of property.

This issue definitely has not gone unnoticed and has been referred to a larger bench by the Bombay High Court which is still to be constituted. However, the vision of our country’s judiciary has evolved and we can at least hope that true equality in all spheres will see the light of the day.

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