Hindu Women’s

Property Rights
 Concept of Property, its
evolution during different
stages of human civilisation
 Different stages of human civilisation
During each stage of development, the concept of social organisation,
structure of society, religious beliefs, culture and tradition, concept of
marriage and family, type of habitation, the nature of property and
rules of its devolution, etc. change.
While there are multiple variations of each stage depending upon
region, and social evolution. there are some broad common
characteristics which can be attributed to each stage of development.

What constitutes property and women’s access to it changes at

each state.
Different stages of human civilisation
Notion of Hindu Undivided Family (HUF)
Property In the Agrarian Age
● HUF Property – Coparcenary

● Coparcener - A person who shares equally with others the right

to undivided family property

● Only males can be coparceners

● Coparcenary – A strong pillar of Patriarchy

● The senior most member of the family is Kartha

● The coparcenary is formed by a Kartha along with three

generations of male descendants
 Notion of Hindu Undivided Family
(HUF) Property
● It is a Right by Birth

● Inheritance by survivorship

● Women have no right of ownership but entitled to stridhan at

the time of marriage

● All women in the family have right of maintenance, marriage &

funeral expenses (religious obligations)
The Hindu Women (Right to property)
Act, 1937
● Limited right granted to widows

● To undo the harm caused by decisions of colonial judges to

the notion of stridhan property

● To step into the shoes of her deceased husband until her death

● Right only to maintenance and carry out other family

obligations

● No right to alienate the property by sale of will

Hindu Law Reforms – Post Independence
● Hindu Marriage Act, (HMA) 1955

● Hindu Adoption and Maintenance Act (HAMA), 1955

● Hindu Minority and Guardianship Act, (HMGA)1955

● Hindu Succession Act (HSA) 1956 -Women get equal rights

in their father’s separate property, but the notion of HUF
property is retained and women are not granted any rights in
this property.
 State Amendments
Southern states brought in state amendments to enhance women’s
right to property
● 1975 - Kerala abolished the Hindu joint family system through a state
legislation

● 1985 - Andhra Pradesh Amended the HSA to give rights to unmarried

daughters in coparcenary

● 1989 Tamil Nadu and 1994 Karnataka and Maharashtra - Brought in

state amendments to give unmarried daughters coparcenary rights equal
to those of sons. The aim was to eradicate the dowry system through
positive measures of empowerment.
 HSA - Amendment of 2005
● Section 6 of HSA deals with the devolution of coparcenary
property of a person who dies intestate (without leaving a
will).

● In 2005, this section was amended to include daughters as

coparceners by birth, carrying the same rights and
responsibilities as sons.

● It enlarged the rights of daughters by granting them equal

coparcenary rights irrespective of their marital status.
Need for a larger bench to decide the issue
Contradictory views expressed by different benches of the
Supreme Court rendered it imperative for a larger bench to
decisively give a verdict and clarify the confusion.

● 2015 - Prakash v. Phulavati

The Court laid down two basic criteria – (i) a daughter cannot
reopen a partition that had taken place prior to December 20,
2004. (ii) the amended section would apply to the daughter only
if her father was alive on the date when the amendment came into
force.
● 2018 - Danamma v. Amar
Relying on the amended Section 6 the court gave the daughter
equal coparcenary rights although her father had died in 2001, i.e.
prior to the 2005 amendment.

● 2020 - Vineeta Sharma v. Rakesh Sharma

A larger bench of 3 judges finally decided the issue and held : A
daughter is a coparcener by birth and whether the father had died
prior to or was alive on the date of the amendment to the Hindu
Succession Act (HSA) of 1956 was irrelevant.
 Implications of the 2005 Amendment on
the status of Hindu Women
Various studies have revealed:
● positive impact on women’s education, labour force
participation
● greater access to women-owned physical and human capital
assets,
● enhanced the probability of daughters education and
inheriting land.
 Implications of the 2005 Amendment on
the status of Hindu Women
Any legal provision which improves women’s right to family
property needs to confront rigid patriarchal and cultural norms,
beliefs, practices and biases.

While the Vineeta Sharma judgment is a significant one, in order

that daughters actually benefit from the judgment at the ground
level, strategies need to be devised for addressing the social,
cultural and economic barriers which are deeply entrenched in the
Indian society.
 Inherent Cultural Biases and Legal
Obstacles
● We still live within cultural traditions of male preference

● From birth women are treated as ‘paraya dhan’

● At marriage the bride is ‘given away’ through a ritual called

‘kanya dhan’ which is considered as one of the essential
ceremonies of a Hindu marriage

● After marriage, the girl is dissuaded from returning to her natal

family even when she faces acute domestic violence.
 Inherent Cultural Biases and Legal
Obstacles
● Women are reluctant to enforce their legal right to property
against their brothers as the natal family remains her only
support base if she faces problems in her marital home. So
women will rarely fight for their share in natal family property

● The process of litigation is long drawn, expensive and beyond

reach of most women and the outcome of the litigation is
uncertain. It varies from court to court and from judge to judge
and the type of litigation support which she can afford.
 Daughter is a daughter throughout her life
● The judgment cites the Supreme Court’s previous judgment in Savita
Samvedi (1996) approvingly: “A son is a son until he gets a wife. A
daughter is a daughter throughout her life”.

● This statement does not reflect ground reality. It is the son who continues to
reside with his parents, while the daughter, after her marriage, leaves her
natal home and goes to her matrimonial home. She is seldom accepted as
part of her natal family.

● This comment reinforces the existing stereotypical view that women are
their worst enemies or that women are manipulators. This only goes to
show that even progressive judges tend to have a superficial notion of
gender equality.
If the daughter is deprived of her coparcenary
rights can it be construed as domestic
violence?

Yes. If the daughter is denied her rights as a coparcener, it

amounts to cruelty and she has a remedy under the Protection of
Women from Domestic Violence Act 2005 (PWDVA).
 Who is covered under the PWDVA?

Aggrieved Woman – any age and any religion

Relations Blood
through Relations
Marriage

Relations Relations in the

through Nature of
Adoption Marriage
Strategically this would be easier remedy as a first step
to bring the male relatives to a negotiating table
regarding her claim to coparcenary property.
Only if this strategy fails she will have to file a suit for
partition which is an expensive and long drawn
litigation.
“Transforming
victims into
survivors”
 Majlis Legal Centre
Majlis has been committed to the protection and promotion of
rights of women and children for the past three decades. An
all-woman team of lawyers and social activists ensure access to
justice to women and girls especially those who are vulnerable
and marginalised. As part of ‘RAHAT’ we provide social and
legal support to victims of sexual and domestic violence. We
conduct extensive training for the Judiciary, Prosecution, Police,
Medical and NGOs on implementation of the law, while also
working with youth (schools and colleges) and communities to
create awareness about rights.
Majlis Legal Centre

5
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