ABSTRACT
Hindu women’s property rights have been subject to alterations since the Vedic era. Women’s equal status with males is now being rejected, and they are being placed in a very inferior position. Great writers such as Narada, Yajnavalkya, and Vyas have recognised the right to ownership in ancient Hindu law. They believe that they should utilize the right to property ownership for noble causes and good intentions. This paper deals with the equality in share of property amongst male and females in a family.Finally, this paper shows how a female member of a joint family will become the coparcener.
KEYWORDS
Equality, Right to Property, Coparcener, Hindu Joint Family, Karta
INTRODUCTION
A woman in a joint Hindu family, which included both men and women, had a right to sustenance, but she did not have control or ownership of property. Mitakshara law prohibits women from joining the coparcenary. Whereas, the advantage of the Dayabhaga schools is that females can become coparceners. In this Dayabhaga system, the women have the right to stridhan and have the right over their husband’s property.Property rights were held by male family members in the ancient Hindu Joint Family system. Women had no rights, and it was the responsibility of male family members to administer the entire family’s property. Later on the daughter was made a coparcener under Section 6(1)[1]. The essence of the Section is that if there are no female or male heirs claiming through a female heir, the rule of survivorship is unaffected. Otherwise, if there are any such heirs, the interest will devolve in accordance with this Act, either through testamentary succession under Section 30 or intestate succession under Section 8. The effective changes of making all daughters (including married ones) coparceners in joint family property have had a tremendous economic and symbolic impact on the female. It can improve females’ economic stability by granting them birth rights to property that men can’t take away. All of this signifies that sons and daughters are equally valued members of the parental household.
The main objective of this research paper is :
- To study the position of women concerning that of a Karta
- To analyze how and why females are recognized as coparceners and capable of managing a business and large families.
- Constitutional provisions ensure gender equality.
- Changes brought in the Position of Woman After Enactment of Hindu Succession Act, 1956
RESEARCH METHODOLOGY
This secondary data based quantitative research led to the equality given to the women in the field of property law. The given data is mainly collected from articles, various books and websites.
REVIEW OF LITERATURE
Hindu women’s right to property has been developed out of proceeding with battle between male centric Indian culture and present day moderate powers of India. The right of Hindu women to acquire property has been confined from the start of Indian culture, however did not totally halt women from acquiring properties, their portion was insignificant in sum. The contemporary Hindu law of property inheritance is generally impacted by old regulations and rules, in ancient India property inheritance rights were to a great extent affected by two Hindu graduate schools as authorized in various pieces of the country individually Dayabhaga School of law and Mitakshra school of law. Both these schools did not give a lot of property privileges to women, however they were given to some degree more rights under Dayabhaga than Mitakshara.
In ancient times, women were not viewed as equivalent to men, in this way their rights were likewise not equivalent to the male individuals from the general public. They were not permitted to offer burial service cake for the profound salvation of the normal precursor, so it very well may be deduced that forswearing of property rights for women has its underlying foundations in strict practices. Be that as it may, at the hour of marriage she got a restricted scope of property, which just included moveable property like gems, garments, utensils, and so on, this property was called Stridhan.[2]
Laws of Hindu differ from one to another even in the questions of segment and progression of the property. There were various schools of Hindu law, which have unmistakable quality over various states; the two most huge schools were Mitakshara and Dayabhaga schools of law. The Mitakshara School was followed all through India except for the eastern piece of India; then again, Dayabhaga School was followed all through eastern India particularly in the pieces of Bengal and Assam.
The fundamental contrast between the Mitakshara and Dayabhaga school is that Mitakshara School perceives the family in the familial property by birth or a legitimate reception just. The male individuals from the family could want parcels to their dad for just tribal property and do not hold a squarely in the father’s self-obtained property. This directly in the genealogical property by birth is known as the standard of survivorship. The lady does not have an offer in the coparcenary property. However, in the Dayabhga school an individual from the family could just get a solidly in the property whether hereditary or self-gained exclusively by the passing of the last holder.
In the Mitakshara school rights in the coparcenary property must be gained by birth, hence the portion of an individual can’t be characterized it continues to vacillate at the birth and demise of a male part, then again, there is no contrast among discrete and coparcenary property in the Dayabhaga school, whatever property an individual procures is by the legacy, and that excessively simply by the passing of the dad (last holder). Each coparcener appreciates equivalent rights in the coparcenary property. Provided that a dad bites the dust intestate then, at that point, all things considered, rights of progression acquire separate property of the dad.
Mitakshara school,generally limited the women’s property rights; women were accepted to always be unable to turn into a coparcener. The widow of an expired coparcener couldn’t get his portion and was not permitted to implement a segment of his husband’s share against his siblings, Dayabhaga school then again was fairly indulgent, it varies in the questions of legacy by women and women as beneficiaries from Mitakshara school, widow’s had more noteworthy property rights in Dayabhaga school than Mitakshara school, a widow has the option to acquire her perished husband’s share and could authorize a segment against his siblings. Disregarding the opportunity given by Dayabhga school, this approach has its own limitations, for example on the demise of a woman who does not have any son, her husband’s share did not give to her daughters and was acquired by the closest male beneficiary.[3]
During the later part of history, when the British were ruling over India, Privy Council preferred the rules and regulations of Dayabhaga School over Mitakshara School. The first case upholding the women’s right to property that laid down the foundation stone of modern Hindu law was the Mussumat Thakoor Deyhee vs. Rai Baluk Ram[4], In this case, the Privy Council held that a widowed woman could dispose of the property inherited from her husband if it is moveable. Still, she had no such right in case of immovable property, the Privy Council ruled that women can dispose of the moveable property in the Benares Hindu law. Still, she can neither dispose of moveable property nor immovable property under Bengal Hindu law.
However, this case was later overruled by the Privy Council in the case of Bhugwandeen Dubey vs. Mynabaee[5]. Hindu women were not allowed in Benares Hindu law from alienating the moveable property also inherited from the husband, which on the death of the widow devolved upon the heirs of the husband. This was done to prevent conflicting judgments as the Bengal school adopted the more stringent form of ancient text, which was finally approved by the Judicial Committee of the Privy Council.
In the recent period with evolving times, it has been perceived that for the country’s improvement women ought to likewise be given equivalent status and rights as men. Thus, the main significant enactment perceiving women’s rights to legacy of property appeared in the year 1956 named Hindu Succession Act, 1956, from that point forward with the progression of time women’s right of property legacy is getting advanced and has progressed significantly, the latest and huge principle for women’s right to property legacy was presented in the year 2005 when an alteration was done in Section 6 of Hindu Succession Act, 1956 and little daughters were given equivalent right contrasted with the portion of the son’s in the father’s property, the arrangement set out the standard that daughter secures directly in the father’s property by birth and keeps on having an interest in any event, when the dad discards his own advantage through a will.
The concept of Coparcenary under Hindu Women’s Right to Property Act, 1937 :
The changes presented by assembly in the idea of coparcency, under Hindu Women’s Right to Property Act, 1937 for the improvement of women caused more harm to the women’s property rights than further developing it.
However, the women were not permitted to turn into a coparcener, they were permitted to acquire the place of the perished spouse, hence deferred the activity of the coparcenary till her passing. The Act gave those powers to the women who were already accessible to the guys, for example, the option to request a segment. The terms, for example, women’s restricted bequest were still practically speaking, because the 1937 Act was all the while utilizing it, and the disarray concerning the women’s position as daughter, spouse, widow, and different characters were still rising.[6]
Daughter as Coparcener, Hindu Succession (Amendment) Act,2005 :
The traditional thought of coparcenary which just included male individuals went through a change by the assembly in the year 2005 through the correction in Section 6 of the Hindu Succession Act, 1956, females were acknowledged as coparceners and were given the right by birth in the familial property. The need of giving the little daughters the option to be a coparcener was first felt before the authorization of the Hindu Succession Act, 1956. But due to furor during that time it was scrapped, then with time concept of stridhan degenerated into dowry and the daughter lost control over it, the second reason why parliament felt that there is a need of giving the Hindu women title of coparcener was for the realization of the constitutional mandate of equality and to defeat discrimination on the grounds of gender in Articles 14 and 15 of the Indian Constitution.
By the effect of the 2005 amendment women were given the power to become Karta of the joint family property, prior to the amendment which was only limited to the male heirs, due to this women become able to enjoy the property fully, whether she inherited it from her parents or her in-laws. Further, because the amendment to devolution of the property by the rule of survivorship has been stopped, it would only operate if she died intestate leaving behind no children. If she died intestate then her share was given to her child, which was decided by the concept of notional partition.
After the enactment of the amendment the question arose before the court whether the the amendment is retrospective or prospective, after more than a decade long discussion and many case laws the question was answered for the final time by the Supreme Court in the year 2020 after detailed reasoning in the case of Veeneta Sharma versus Rakesh Sharma[7], the court said that amended Section 6 of the Act confers the status of a coparcener to the daughter born before or after the commencement of the amendment in the same manners as the son, and the rights can also be claimed by a daughter born before 9.9.2005, to the partition, alienation, or disposition which has taken place before 20th December 2004. Hence, the Act operates on a retroactive effect.
SUGGESTIONS
The 2005 amendment in the Hindu Succession Act, 1956 was the main advance throughout the entire existence of Hindu women’s property rights. Since the daughters now also have right by birth in the ancestral property as the sons, she cannot be denied her share in the property by testamentary disposition by the father.
On the off chance that the women do not have any familiarity with these rights accessible to her, it is of no significance, the public authority should spread general consciousness of the rights accessible to women At the grassroots level, legitimate education camps ought to be coordinated for the Hindu women’s, however for every one of the religions. In the modern period, a nation cannot develop if the women of that nation are still lacking behind, thus the women should have equal rights to their male counterparts not just on paper, but also in practice, then only a nation can be on the right track of development.
CONCLUSION
Women in India have traditionally been marginalized as a result of the country’s strict regulations. The premise of Karta was that the Hindu Joint Family’s members and possessions would be cared for by the senior most male member. Women were never considered until recently, when India’s legislature and judiciary exerted their rights and authority in such a way as to promote gender equality. The Hindu Successions Act was amended in 2005, making it possible for women to be coparceners in Hindu Joint Families and to be considered for the position of Karta. We have seen many examples where justice has been denied due to a lack of understanding of one’s rights or awareness of the law. As a result, this law and amendment should make life easier for women and make it easier for them to understand their rights. Measures should be taken to ensure that people are empowered and educated enough to understand and assert their rights. Social awareness and education are required to modify people’s attitudes about the concept of gender equality. By enacting a consistent law, it is also necessary to focus attention on changing social attitudes favour equality for all. Therefore, Recent advancements in Hindu women’s property rights law have significantly increased the possibility for granting comprehensive rights to deserving property.
[1] Hindu Succession (Amendment) Act, 2005.
[2] Reena Patel, Hindu Women’s Property Rights in India: A Critical Appraisal, Third World Quarterly, https://www.jstor.org/stable/4017753
[3] Debarati Halder & K. Jaishankar, Property rights of Hindu women: a feminist review of succession laws of ancient, medieval, and modern India, Journal of Law and Religion, https://www.jstor.org/stable/25654333
[4] Mussumat Thakoor Deyhee vs. Rai Baluk Ram, (1866) 11 M.I.A. 139
[5] Bhugwandeen Dubey vs. Mynabaee,(1868) MANU/PR/0016/1867
[6] Shruti Pandey, Property Rights of Indian Women, Women’s Link Worldwide, https://www.womenslinkworldwide.org/files/gjo_article_India_caseC.%20Masilamani_en.pdf.
[7] Veeneta Sharma vs. Rakesh Sharma, (2019) 6 SCC 162
AUTHOR – Tanima Roy
College – Amity University, Kolkata
Batch – 2019-2014