RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

FAMILY LAW - II

Project Submission on

CHANGING NOTION OF HINDU

WOMEN’S PROPERTY RIGHTS

Submitted By: Submitted To:

Tushant Polycarp Xalxo Dr. Kamaljit Kaur

17127

Group no. 24
 TABLE OF CONTENTS

TABLE OF CONTENTS________________________________________________________2

INTRODUCTION_____________________________________________________________3

HINDU SUCCESSION ACT, 1956________________________________________________5

FULL OWNERSHIP IN PROPERTY FOR HINDU FEMALES_______________________7

Limited Ownership converted into full ownership____________________________________7

Retrospective Application to Properties____________________________________________7

Equal Right in a Coparcenary___________________________________________________8

PRE & POST HINDU SUCCESSION ACT________________________________________9

JUDICIAL DECISIONS_______________________________________________________11

RIGHT OF WOMEN & THE CONSTITUTION OF INDIA_________________________13

CRITIQUE & CONCLUSION__________________________________________________16

BIBLIOGRAPHY_____________________________________________________________17

BOOKS & TREATISES________________________________________________________17

WEBSITES_________________________________________________________________17

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 INTRODUCTION

India is a land of various cultures, religions, traditions. This is majorly due to the large diversity
of population, which belong to various different kinds of castes, religions, races. Even among 2
same castes, races, there is a disparity with respect to the traditions, rituals, as well as various
aspects of the culture. Local customs & norms also have a great impact on the cultural diversity.

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, 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. On the issue of women‟s
property rights, there are differences amongst the different personal laws. In Hindu religion,
women‟s legal right to inherit property has been restricted from the earliest times in Indian
culture. In the ancient text Manusmriti, Manu writes: “Her father protects her in childhood, her
husband protects her in youth and her sons protect her in old age; a woman is never fit for
1
independence.” However, women were not always excluded from inheriting movable or
immovable property from ancestral and marital families. But their proportion of share in the
property was far less than that of their male counterparts.2

A Hindu woman, whether a maiden, a wife or a widow has never been denied the use of her
property. Even in Manusmriti one can see that right to hold property had been respected. 3 Jurists
like Yajnavalkya, Katyayana and Narada further promoted the concept of women‟s right to
property. Women‟s property rights improved and defined during their time. 4 The Smritikars
created a unique type of property to women, the Stridhana. Since ancient times Stridhana was

1 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, Jan. 2008.
2 Idib.
3 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).
4 Ibid.

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treated as women‟s separate property.5 Jimutavahana went to the extent of stating that woman
has absolute control over her property even after marriage. The ornaments, the wealth she
receives at the time of marriage from her father and relatives constitute her share. The gifts from
her own and husband‟s family would also be her own.

The Hindu Women‟s Rights Property Act 1937 introduced a vital change in the Hindu
Mitakshara Law of Joint Family Property. S. 3 (2) of the act enacts that “when a Hindu governed
by any school of Hindu law other than the Dayabhaga school or by customary law, dies intestate,
having at the time of his death an interest in a Hindu joint family property, his widow shall,
subject to the provisions of sub section (3), have in the property the same interest as he himself
had.” Subsection 3 is as follows: - “Any interest devolving on a Hindu widow under the
provisions of this section shall be the limited interest known as a Hindu woman's estate,
provided, however, that she shall have the same right of claiming partition as a male owner”. In
other words, the widow of a deceased co-parcener, gets the same interest in the joint family
property that her husband had. She steps into the shoes of her husband in the coparcenary. 6 The
familiar doctrine of the Hindu law that a woman cannot be a coparcener under the Mitakshara no
longer holds the field in so far as a coparcener's widow is concerned.

5 Alladi Kuppuswami, MAYNE‟S HINDU LAW AND USAGE 840 (12th Edn., Bharat Law House, 1986).
6 A.S. Kuptuswamy Iyer , The Hindu Women's Rights to Property Act 1937, (1937) 46 LW (JS) 27 (2).

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 HINDU SUCCESSION ACT, 1956

The Preamble of the Hindu Succession Act, 1956 reads as “An Act to amend and codify the law
relating to intestate succession among Hindus.” Based on the Hindu Code Bill, a uniform
succession law, the Hindu Succession Act (1956), was adopted for Hindus in free India and
finally gave a death blow to the ancient practice of preventing women from inheriting landed
property from male heirs. With this Act, the concept of women's estate was finally discarded and
the meaning of Stridhan expanded by including landed property along with other movable and
immovable properties. Women's estate was now converted into Stridhan by Section 14 of the
legislation, which said that any property a Hindu woman receives after June 17, 1956, will be her
absolute property.

According to the Act, “property” includes both movable and immovable property that she
receives as gift, or through maintenance or inheritance, or that she acquires by her own skill or
by purchase, prescription, partition etc.44 The definition of the property enumerated in
Subsection 1 of Section 14 of the Act includes all the types of property that were enumerated in
the ancient text Vijnaneshwar, in which Stridhan was shown to be of nine types. However, this
does not mean that under the Hindu Succession Act, women always get full ownership over
property, as Subsection 2 of Section 14 retains the power of any person or the court to give
limited estate to a woman in the same manner as a limited estate may be given to any other
person.

Section 14 has had a retrospective or backward-looking glance. 7 It converts an existing women's

estate into Stridhana or absolute estate only when two conditions are fulfilled: 1) ownership of

7 Paras Diwan, MODERN HINDU LAW, at 354.

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the property must vest in her and it is not limited ownership; and 2) she must be in possession of
the estate when the Act came into force.8

According to Mitakshara law, no coparcener, not even a father, could dispose of his undivided
coparcenary interest by will, unless he was a sole surviving coparcener. But now the Hindu
Succession Act, 1956, permits a member of a Mitakshara Coparcenary to dispose of his
undivided interest in the coparcenary property by will. Thus it may be stated that it is now
possible for a Hindu widow to succeed even to the whole property of her husband by will,
subject to the legal right of certain dependents of the deceased husband for maintenance.

8 Deenadayal v. Raju Ram, 1970 S.C.R. 1019 (1970).

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 FULL OWNERSHIP IN PROPERTY FOR HINDU FEMALES

The biggest impact of the HSA, 1956 was on the area of Hindu Woman‟s right to Hold Property
and dispose it off as an absolute owner. It is no less than a miracle that such a right ahs at last
been conferred upon women. In the opinion of the Supreme Court, S.14 was introduced as a step
towards the recognition of the right of the equality of the sexes. It was meant to elevate women
from a subservient level, in the society, to a higher pedestal, where they could exercise full
power over the properties held by them.

Limited Ownership converted into full ownership

S. 14 of the HSA converted the limited ownership into a full-fledged ownership and also ended
the confusion and controversy regarding the exact share that the widow took on the death of her
husband as an undivided member in the Mitakshara Coparcenary. Presently, she inherits the
same share of her husband‟s property as his primary heir, and the quantum and nature of her
share is identical to that of the son.

Under Section 14 of The Hindu Succession Act 1956, the limited interest of Hindu female is
converted into absolute rights. If she gets property from her husband she can sell it and the
purchaser gets absolute right in the property.9 Prior to the Act, she could sell it only for the
necessities of the family or to perform religious ceremonies for the benefit of her deceased
husband.10

Retrospective Application to Properties

9 Women Property Rights: A Comparative Study Of Hindu, Christian And Muslim, Pg. 154, available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/201578/8/08_chapter%204.pdf
Ibid.

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For widows who on the date of the passing of the act were in possession of the property as
limited owners, S. 14 provided that hence forth, they would hold these properties as full owners
thereof. It provided:

“Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a
limited owner.”

Equal Right in a Coparcenary

Upon the death of a coparcener the property devolves upon his mother, widow and daughter
along with his son by testamentary or intestate succession and not by survivorship. This rule
confers on the women an equal right along with the male members of the coparcenary41. It is to
be noted that Section 6 still retains the Mitakshara coparcenery excluding women from
survivorship as a result father and sons hold the joint family property to the total exclusion of the
mother and daughter despite providing a uniform scheme of intestate Succession

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 PRE & POST HINDU SUCCESSION ACT

Prior to 1937, the widow of a caparcener, who had died as a member of the undivided Mitakshara
coparcenary, was entitled to only a right of maintenance from the joint family property in the
capacity of the member of such joint family. As the doctrine of survivorship applied, the share of
the coparcener went to the surviving coparceners under this doctrine & nothing was given to the
widow of such member.

Post 1937, with the passing of the Women‟s Right to Property Act, 1937, where a coparcener
dies leaving behind his widow, his widow stood in his shoes. 10 Though not exactly a coparcener,
yet she took the share of the deceased member, i.e. her husband.

Post 1956 Act – The HAS was passed to lay down a comprehensive law relating to the intestate
succession. With the passing of this act, women had their rights of limited ownership converted
into full fledged ownerships S. 14 of the HSA also ended the confusion and controversy
regarding the exact share that the widow took on the death of her husband as an undivided
member in the Mitakshara Coparcenary. Presently, she inherits the same share of her husband‟s
property as his primary heir, and the quantum and nature of her share is identical to that of the
son.

Under Section 14 of The Hindu Succession Act 1956, the limited interest of Hindu female is
converted into an absolute right. If she gets property from her husband she can sell it and the
purchaser gets absolute right in the property.11 Prior to the Act, she could sell it only for the
necessities of the family or to perform religious ceremonies for the benefit of her deceased
husband.13

10 S.3 (2), Hindu Women‟s Right to Property Act.

11 Women Property Rights: A Comparative Study Of Hindu, Christian And Muslim, Pg. 154, available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/201578/8/08_chapter%204.pdf
Ibid.

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 JUDICIAL DECISIONS

The Judiciary has also played a significant role to widen further the scope of Section 14 of the
Hindu Succession Act 1956. In Tulsamma v. Sesha Reddy,12 the Supreme Court observed that the
shackles placed on the Hindu women over her property have been broken by this Act and her
status has been brought on par with men. In the instant case the trial court decreed the suit on the
ground that the appellant had a limited interest in the property allotted to her by the respondent,
her deceased husband‟s brother. The appellant was entitled to maintenance out of the joint
family property when she leased out her property. The respondent filed a suit for a declaration
that she had no absolute right over the property. Instead her right was only a limited interest. The
contention of the appellant that she had become the full owner of the property by virtue of
Section 14 of The Hindu Succession Act 1956 was upheld by the Supreme Court.

The Supreme Court through its judgment in fact went beyond legislative language. The Court
said that Section 14 is wide in its scope and ambit. It says that any property possessed by a
female Hindu whether acquired before or after the commencement of the Act shall be held by her
as full owner. The words „any property‟ are large enough to include her Stridhana obtained
immediately before the commencement of the Act. The Hindu women‟s right to maintenance is
not an empty formality or an empty claim being concluded as a matter of grace and generosity,
but it is a right against property which flows from the spiritual relationship between husband and
wife and is recognized and enjoined by the customary Hindu law and had been strongly stressed
by Hindu jurists starting from Manu to Yajnavalkya.13

The principle enunciated by the Supreme Court in Tulsamma case 14 had been applied in Pratap
Singh v. Union of India.15 The petitioner challenged even the validity of Section 14(1) of the
1956 Act on the ground that it is unconstitutional and violates Articles 14 and 15(1) of the

12 Tulsamma v. Sesha Reddy, AIR 1977 SC 1944.

13 Ibid.
14 Supra 14.
15 Pratap Singh v. Union of India, (1985) 4 SCC 197.
Ibid.

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Constitution since it favored one section of the community namely the Hindu women. Relying on
Article 15(3), the court rejected the contentions. Article 15(3) enjoins the State to make special
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provisions for women and children. It overrides Article 15(1) which prohibits discrimination
on the ground of sex, race, caste, religion etc. The Court added that Section 14 is a special
provision enacted for the benefit of Hindu women. These two cases show that the Supreme Court
has utilized every opportunity to uphold the true spirit and intention of the legislator

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 RIGHT OF WOMEN & THE CONSTITUTION OF INDIA

Indian Constitution has a substantially elaborate framework to ensure equality amongst its
citizens. It not only guarantees equality to all persons, under Article 14 as a Fundamental Right,
but also expands on this in the subsequent Articles, to make room for affirmative action. Article
14 of the Constitution of India states that, “The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India.” In practice this
guarantee has been read to infer „substantial‟ equality as opposed to „formal‟ equality, as
judicially explained and elaborated upon in several judgments of the Supreme Court of India as
well as the Indian High Courts.16 The latter dictates that only equals must be treated as equals and
that unequal may not be treated as equals. This broad paradigm itself permits the creation of
affirmative action by way of special laws creating rights and positive discrimination by way of
reservations in favour of weaker classes of society.

The same object is supported by Article 15 of the Constitution, which specifically lays down
prohibition of discrimination on any arbitrary ground, including the ground of sex, as also the
parameters of affirmative action and positive discrimination: “Article 15: Prohibition of
discrimination on the grounds of religion, race, caste, sex, place of birth or any of them:

The Indian courts have also taken an immensely expansive definition of fundamental right to life
under Article 21 of the Constitution as an umbrella provision and have included within it right to
everything which would make life meaningful and which prevent it from making it a mere
existence, including the right to food, clean air, water, roads, health, and importantly the right to
shelter/ housing.17

16 Shruti Pandey, Property Rights of Indian Women, available at

https://www.womenslinkworldwide.org/en/files/1290/property-rights-of-indian-women.pdf.
17 Mohini Jain v. State of Karnataka, (1992) 3 SCC 666, Chameli Singh v. State of U.P., (1996) 2 SCC 549.
Ibid.

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Additionally, though they are not justiciable and hence cannot be invoked to demand any right
thereunder, or to get them enforced in any court of law, the Directive Principles of State Policy

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in Chapter IV of the Indian Constitution lend support to the paradigm of equality, social justice
and empowerment which runs through all the principles. Since one of the purposes of the
directive principles is to guide the conscience of the state and they have been used to
constructively interpret the scope and ambit of fundamental rights, they also hit any
discrimination or unfairness towards women. However, as mentioned above, notwithstanding the
repeated and strong Constitutional guarantees of equality to women, the property rights of Indian
women are far from gender-just even today, though many inequalities have been ironed out in
courts. Below are some of the highlights of the property rights of Indian women, interspersed
with some landmark judgments which have contributed to making them less gender unjust.18

18 Supra 19.

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 CRITIQUE & CONCLUSION

Even though Section 14 of the Hindu Succession Act converted women's estate to Stridhan, it
was not flawless. The issue of female inheritance was questioned in case of inheritance with
limitation clause. There were several other clauses which continued the age old discrimination of
male and female heirs. The Act of 1956 is meant for unmarried daughters to claim inheritance of
the property. Under Section 15 of the Hindu Succession Act (1956), the daughter-in-law inherits
only when she is a widow. Hence she cannot inherit her due share in her father-in-law‟s property
when her husband is alive.19 This decision was arrived at by the Courts while discussing the
applicability of Section 15 (b), which states that “any property inherited by a female Hindu from
her husband or from her father-in-law shall devolve in the absence of any son or daughter of the
deceased (including the children of any predeceased son or daughter) not upon other heirs
referred to in subsection (1) in the order specified therein, but upon the heirs of the husband.”

The Court had to clarify the wordings of Section 15 (b) for the purpose of finding out the right
heir of the property of widowed woman who have inherited her share from her father in law. In
the case of Kailash v. Kishan, the court thus decided that there is no flaw in the factual operation
of the Section. For the purpose of the widow's heir in question, the inherited property from her
father-in-law would be devolved upon the heirs of her husband after her death. In case she
remarries and her second husband also dies and she inherits property from her father-in-law from
the second marriage, the said inherited property from the second marriage would be devolved
upon the heirs of the second husband and not on the heirs of the first marriage.

BIBLIOGRAPHY

19 Kailash v. Kishan, Pat. 154.

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 BOOKS & TREATISES

• Ranganath Misra, MAYNE‟S TREATISE ON HINDU LAW & USAGE, 17 th edn.

• Satyajeet A. Desai, MULLA PRINCIPLES OF HINDU LAW 21st Edn., 2013.
• Tahir Mahmood, PRINCIPLES OF HINDU LAW (Universal Law Publishers).
• Kusum, FAMILY LAW LECTURES, FAMILY LAW-I, 4 th edn, 2015 (LexisNexis, Delhi).
• Paras Diwan & Peeyushi Diwan, MODERN HINDU LAW (CODIFIED AND UNCODIFIED), 23 rd
edn, 2018 (Allahabad Law Agency).
• Derrett, J. Duileon M., INTRODUCTION TO MODERN HINDU LAW, (Oxford University Press).
• Desai, Kumud, FAMILY LAW IN INDIA, 8 th Edn., 2011 (Wadhwa Publication, Nagpur)

WEBSITES

• Manupatrafast.com
• Scconline.com
• Jstor.org

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