WOMEN'S PROPERTY RIGHTS UNDER TRADITIONAL HINDU LAW

AND THE HINDU SUCCESSION ACT, 1956: A FEW OBSERVATIONS

SUBMITTED BY-
Pranshutosh Kumar

B.A LL.B, 2nd year

University of Petroleum and Energy Studies

7081310069

Email.Id- pranshutosh1234@gmail.com

Electronic copy available at: https://ssrn.com/abstract=4407565

 Abstract
Women in India and other countries have battled for centuries to obtain their most fundamental
rights. The right to property is one such privilege. It was assumed that the daughter would
eventually be married and move to a different home in ancient Hindu society. Therefore, only the
male Hindu family members would receive a share in the event of a partition or split of property.
Women would only get property during marriage (Streedhan) and other auspicious occasions at
public events. Women were not awarded a piece of the property because they had no other
source of income. This nation follows Hindu law. But it also introduced some abnormalities,
such as uncodified Hindu law. The question arises and observation are, According to Hindu
Mitakshara law, women are not coparcenary; are, as a result, not granted any rights to the
coparcenary property, with the exception of those set forth in Section 6 of the Hindu Succession
Act, 1956. A stranger who is adopted into a family becomes a cohabitant, while a daughter who
is born into the family does not. She just qualifies for upkeep.

The Vedic literature stipulated that both a married daughter without brothers and an unmarried
daughter should inherit. The sisters' daughters, nonetheless, were not granted inheritance rights.
The prevailing belief in Hindu culture at the time was that females who had brothers were not
entitled to a share of the wealth. In the Vedic era, the husband and woman were regarded as co-
owners of the home and, consequently, of its possessions. This shared ownership idea merely
assisted the wife in achieving a few small rights and benefits, such as sharing in money and
having adequate maintenance supply. It did not, however, guarantee that she would possess the
property on an equal footing with her husband. The woman's status diminished over time as the
idea of private property developed. Her physical incapacity and other shortcomings, such as
those relating to performing religious rites and ceremonies, provided justification for the
assignment to her, status was inferior.

In the combined family, the situation for women was far worse. She was thought to hold a much
lower position inside the joint family. A woman, when it comes to succession, The Mitakshara
shared family property could not be passed on to her, whether she was a wife, widow, mother,
daughter, or sister. She just had a right to maintenance. The widow and daughter of a deceased
brother were not included in the group of undivided brothers and their sons; they simply had a
claim to support and were at the mercy of the living brothers. They were rarely able to enforce
even their maintenance rights against rebellious brothers due to their helplessness. In some areas,
the Indian Constitution has given Indian society additional dimensions. Article 13 of the
Constitution states that all legislation that are inconsistent with or in violation of the ban on
discrimination have been repealed. The fundamental rights have been determined to be exempt
from restriction

Electronic copy available at: https://ssrn.com/abstract=4407565

 Introduction
Right of Hindu women over property has been evolved as a result of ongoing conflict between
patriarchal Indian society and contemporary progressive movements in India. From the
beginning of Indian culture the right of women over property has been restricted and women
over property has been restricted and women failed to get the share of property which actually
belongs to them. In ancient times in India two Hindu school based on legal principle, the
Dayabhaga and school of law and Mitakshra School of law respectively were in charge of
enforcing the laws in their own religion field. These two school had the great impact and had a
paramount role in present Hindu law of property inheritance. Even though none of these schools
provided right over property to the women in India. Dayabhaga gave them a little bit more than
Mitakshra did. 1 The standing of women was higher in the Vedic era than it was in the later
era.2All around the Vedic age in comparison to the latter period women enjoyed a greater status.3
They were regarded as a divinity. Generally, a girl did not suffer in that regard even though her
birth was not a cause of celebration. They were expected to the present at all religious gathering
after being married because they were viewed as her husband’s extension. Both had to shared the
same responsibilities and right in the personal home. The only obstacle that the women at that
time were the widespread lock of inheritance rights. 4

Since the drawn of modern history, India has been a patriarchal society. Males had cleared
defined roles and making decision, while female cares for their parents, partners, children and
handle their homes chores, but now the world where we live is no longer an only playground for
men. Women are not completing equally with their male counterparts in every sector, they often
outperform them but, when a civilization has survived for a very long time on a set of custom
and belief, there will always be opposition. Unfortunately, there is still a long way to go before
eradicating the patriarchy social stigma and traditional belief that hold women to be inferior to
men and not their equals. 5 The Hindu Succession Act governs property and inheritance laws in
India. The fundamental belief that preventing females from having right over property is that,
they should leave their birth families after getting married. The limits the families ability to
control its assets.6

1
LEGAL SERVICE INDIA E-JOURNAL, https://www.legalserviceindia.com/legal/article-6120-hindu-women-s-
right-to-property-the-fight-for-equal-rights-from-past-to-present.html (last visited Feb 21,2023).
2
LL.M.. Ph.D. Associate Professor, Department of Law. Former Administrative Secretary to Vice-Chancellor,
University of Rajasthan, Jaipur.
3
D.N MAJUMDAR, Races and Culture of India, Indian Culture Discover, Learn, Immerse, Connect (1958).
4
Prakash Chand Jain, Women's Property Rights Under Traditional Hindu Law and the Hindu
Succession Act, 1956: Some Observations, 45 Journal of the Indian Law Institute (2003).
5
VAKIL SEARCH, https://vakilsearch.com/blog/hindu-succession-act-on-womens-property-rights/ (last visited Feb
22,2023).
6
INDIA LEGAL, https://www.indialegallive.com/legal/property-rights-of-women-under-hindu-law-in-india/ (last
visited Feb 22,2023).

Electronic copy available at: https://ssrn.com/abstract=4407565

 Women Inheritable Right in Hinduism
In Vedic Era, the husband and women were regarded as co-owners of the home and consequently
of its possession. Due to small sharing of ownership in the home merely assist the women in the
family in achieving some right and privilege in the family such as contribution in money and
getting adequate family requirement goods and money from husband but also there were no
guarantee of right of property in the family. Thus, in Vedic Era, the women had no property
right. Nonetheless, the Vedic literature acknowledgement her ownership of the Streedhan. 7 Even
in the decision and succession of property, Hindu religious laws varies from region. The
principle of Hindu laws was taught in a variety of schools and each schools had influence over a
particular state. The most paramount schools were the Mitakshra Schools was practiced across
India with the exemption of the eastern region and the Dayabhaga school was practiced
throughout eastern India, particularly in the regions of Bengal and Assam. The primary
distinction between the Mitakshra and Dayabhaga schools is that the Mitakshra school deals with
the right in the ancestral property by birth or a valid adoption. The male member of the family
could ask their father for a division of only the ancestral property and do not hold a right in the
father’s self- acquired property.8

Women can inherit certain forms of property, which are then regarded to be her property.
According to Section 14 of the Hindu Succession Act, Hindu women has the same legal claims
to her deceased parents assets that a Hindu man has. 9 Similarly to the inheritance rights there is
no difference between man and women when it comes to receive property from a deceased from
a deceased parents. The inheritance rights of a married daughter are identical to those of an
unmarried daughter which is another crucial point to remember. Each have the same claim to the
inheritance as their male siblings. In addition, the Apex courts had recognized women as
coparceners or joint legal heirs for the purpose of decide inherited property. 10 The women status
dismissed over the period of time due to the new provision of private property come into the
highlight. Their physical incapacity and other short coming such as those relating to performing
religious rites and ceremonies provided justification for the assignment of inferior status. A
Hindu women was barred from inheriting by Baudhayana, who was the supposed founder of one
of the schools of Yajurveda. He used the Shruti scripture as support for his idea that women are
not entitled to inherit because “ women are deemed to be lacking of strength and of a part.’’ He

7
Supra note 4.
8
Supra note 1.
9
HINDU SUCCESSION ACT,1956, §14.
10
Raghvendra Nath, Inheritance Rights of the Hindu,Muslim,Christian,women are not same,THE ECONOMIC TIMES,
HTTPS://ECONOMICTIMES.INDIATIMES.COM/WEALTH/LEGAL/ WILL/INHERITANCE-RIGHTS-OF-HINDU- MUSLIM-
CHRISTIAN-WOMEN- ARE-NOT-THE-SAME/ ARTICLESHOW/90067981.CMS.

Electronic copy available at: https://ssrn.com/abstract=4407565

also asserted that the vedas forbade women from inheriting, saying that they are “ devoid of
process and incompetent to inhabit, women are useless. 11

Streedhan and the estate of women

In the traditional Era, the women possessed some property right prior to the Hindu Succession
Act of 1956. The property which generally belongs to the women was name as the Streedhan.
Streedhan means “a women’s fortune”. The ancestors of the law, the Smritikars, claimed that
Streedhan included the objects she received as gifts from family members particularly movable
item like clothing, jewellery and ornaments. Mainly all there were referred as to Saudaiyika
Streedhan.12 The Rig Vedic era is thought to be when streedhana's seeds were first planted. The
bride's sole recognized personal property was the wedding gifts, such as the jewellery she wore.
But, throughout the Smriti era, its scope was expanded. On an Improvement in the Streedhana
categories is discovered while taking into account the list provided by various Smriti writers.
According to authors of Smriti, the term "Streedhana" referred to a variety of presents given on
special occasions and at religious rites by close relatives. Only gifts given before the wedding
fire or during the bridal procession qualified as gifts from strangers in this situation. 13

The scope of the women's estate or property deals with the idea of restricted rights and
ownership of women over the property, which was in effect until 1956 but was repealed by
section 14 of The Hindu Succession Act of 1956, which gave women complete ownership of
both rights and property. Any property that a female Hindu owns, whether it was purchased
before or after the Hindu Succession Act of 1956 took effect, must be held by her as the
property's complete owner and not only a limited owner, 14according to section 14 (1) of that law.
It concerns women's freedom to reclaim their property at any moment, use it however they see
fit, and dispose of it as they see fit. 15 In the case of Punithavalli Ammal vs Ramalingam (Minor)
And Another,16 Supreme Court held that, Property possessed by a Hindu woman pursuant to
clause 1 of section 14 of the Act is absolute and not defendable, and its extent cannot be
restricted by any provision of the act, including its language, inferences, theories, or rules. The
court did find, however, that the Hindu woman is assumed to be the only owner of whatever
property she acquired before or after the act's enactment and that she was the sole owner of on
the date the act took effect. In the case of Santhosh & Others vs Saraswathibai And Another17
also Supreme Court held that, The estate would be deemed to be owned by the widow and, by
virtue of section 14(1), would have acquired full or absolute rights over the property if she

11
Georg Bühler, Baudhayana Dharmasutra, 2 COLUM, WISDOM LIBRARY PEACE-LOVE-DRAMA, 2.2.47,
(1882), https://www.wisdomlib.org/hinduism/book/baudhayana-dharmasutra .
12
Supra note 5.
13
Supra note 4.
14
Supra note 9.
15
HINDU SUCCESSION ACT,1956, §14(1).
16
Punithavalli Ammal v. Ramalingam (Minor) And Anr, (1970) 1 SCC 570.
17
Santhosh And Others v. Saraswathibai And Another, (2008) 1SCC 465.

Electronic copy available at: https://ssrn.com/abstract=4407565

 acquired a stake in the property under a preliminary declaration before or at the time the 1956 act
had been passed but had not been granted real ownership under a final declaration.

Section 14 (1) of The Hindu Succession Act, 1956 states that the following things are sources of
Streedhan:18

 Bequest and gifts from family member.

 Bequest and gifts from strangers.
 Property obtained by manual labour and mechanical skills.
 Property acquired by Streedhan.
 Property obtained through a compromise.
 A property acquired unfairly.
 Property acquired as opposed to up keep.

STREEDHAN VS DOWRY
In a nation like India where strict legislation has fallen short of eliminating the danger of dowry
from society, Streedhan is a crucial component. Streedhan refers to a specific set of assets and
things that a lady received from her family, friends, or acquaintances during the course of her
marriage. Yet, there is a widespread cultural misconception about the long-standing custom where
the bride's family sends income or any property (including both tangible and intangible) to the
groom or his family ostensibly for the bride. In modern society, this custom is commonly
recognized as dowry. The main difference between dowry and Streedhan is the presence or
absence of the factors "demand, avarice, and coercion" in the former but not in the latter.
Streedhan is not the result of the aforementioned components; rather, it is a gift given to women.
The Streedhan can be retrieved if the marriage breaks down in the future, but the groom or his
family keeps the wealth or property in the case of dowry.

In the case of Girish Chander Raina v. Sushma Sharm,19 the High Court of Jammu and Kashmir
held that, The property being transferred to the recipient of the dowry is its fundamental
component. The individual who sought the dowry will typically receive the property. Streedhan
refers to the idea that the bride owns all of the property that is given to her before, during, after, or
at the time of her marriage, and has complete control over how to use it. The donation of the
property is a free act on the part of the donor. In the case of a dowry, it is required under coercion
or as a condition that the property be given to the individual making the demand.

In Pratibha Rani vs. Suraj Kumar 20case, SC observed that, The petitioner had to put up with her
in-laws because her husband's family had mistreated her and refused to give her a Streedhan. The
Supreme Court agreed that the case serves as an example of a sad married woman's situation.

18
Supra note 15.
19
Girish Chander Raina v. Sushma Sharm, LQ 2008 HC 19363
20
Pratibha Rani vs Suraj Kumar & Anr, (1985) 2 SCC 370.

Electronic copy available at: https://ssrn.com/abstract=4407565

The court also took note of her severe suffering during the litigation process. This case highlight
the underlines the sarcasm that several social ills are pervasive in current society and are causing
it great harm. One of those is the dowry system, which is still at its height for not only putting
out the flames of happiness and wealth in the lives of the bride and her family but also for
obscuring the true worth of a lifelong relationship known as marriage by slapping their demands
on the bride's family. The female victims of dowry and marriage must let darkness and domestic
abuse to overtake them or they will endure the slow poison for the rest of their lives. With
cutting-edge technologies and a GDP of 2.72 lakh crores, our country is on the cusp of being a
developed country in the twenty-first century.21

The Role in a Hindu joint family

In the joint family, women had an even worse situation. She was seen as holding a significantly
lower position within the combined family. No woman, whether a wife, widow, mother,
daughter, or sister, could succeed to the Mitakshara in matters of succession. Joint family assets
She just qualified for maintenance. The widow and daughter of a deceased brother were not
included in the group of undivided brothers and their sons; instead, they were at the mercy of the
other brothers and merely had a right to maintenance. They were rarely able to use their
helplessness to enforce even their maintenance rights against rebellious brothers. The
women received relatively limited rights in terms of succession, division, and stake in joint
family property. To put it briefly, there was gender discrimination under Hindu law in the past,
and only men were allowed to hold and enjoy exclusive rights as he saw fit.

In the Mitakshara and Dayabhaga schools, a widow had no right to inherit her deceased
husband's separate property prior to the implementation of this Act when he left a son, grandson,
or great-grandson. The Act strengthened her legal standing and designated her as the son's,
grandson's, or great grandson's joint heir, as appropriate. The Act also granted the same rights to
the widow of a predeceased son and the widow of a predeceased son of a predeceased son in the
same vein. The Act, however, only gave them a little estate in the inherited property. 22

Reforms introduced in the 1956 Act

In some areas, the Indian Constitution has given Indian society additional dimensions. Article 13
of the Constitution states that all legislation that are inconsistent with or in violation of the ban
on discrimination have been repealed. The fundamental rights have been determined to be
exempt from restriction. Article 15 removes restrictions and discrimination based on race,
religion, caste, sex, place of birth, and other factors in a similar vein. It also directs the state to
create accommodations for women and children. Furthermore, there were already a lot of voices
calling for changes to the Mitakshara system of property ownership. Also, the outdated notions

21
Ritesha Das, Stridhan and Women’s Estate Under Hindu Law, Lexpeers (May 18,2020),
https://lexpeeps.in/stridhan-and-womens-estate-under-hindu-law/#_ftn5 .
22
Supra note 4.

Electronic copy available at: https://ssrn.com/abstract=4407565

of the joint family and the Mitakshara coparcenary were not supported by modern thought. There
is a constitutional discrimination against daughters while Mitakshara coparcenary is retained.
Only if the rules are implemented equally to all Indians can Indian society advance more quickly.
Also, the constitution requires the state to do this.

The Hindu Succession Act, 1956 was revised by the parliament in 2005 to grant daughters
coparcener status, which places them on par with sons in a household and grants them equal
inheritance rights. The Supreme Court's bench of Justices Arun Mishra, S. Abdul Nazeer, and
M.R. Shah ruled in Vineeta Sharma v. Rakesh Sharma23 on August 11 that a daughter is a
coparcener by birth and that it is irrelevant whether the father passed away before or was still
alive on the date of the amendment.

The Hindu Succession Act, 1956's gender-discriminatory clauses were repealed by the Hindu
Succession (Amendment) Act, 2005 (39 of 2005). According to the amendment, a daughter of a
coparcener shall, like a boy, by birth become a coparcener in her own right. In the coparcenary
property (ancestral property of the Hindu undivided family), the daughter will now have the
same rights as a son. The Hindu Succession Act's Section 23 24 is also repealed, which prohibited
female heirs from requesting a partition of a home that was entirely occupied by a joint family
until the male heirs decided how to divide their respective portions. A widow no longer has the
right to inherit her late husband's assets upon remarriage thanks to the removal of Section 24 25 of
the Act. All state governments are now subject to a major modification brought about by this
Act.26

The impetus for parliament to amend the HSA in 2005 was, in institutions where membership
rights are fundamentally uneven, such as the Hindu joint family and the Mitakshara
coparcenary, a subset of the former, there is inherent inequality. In a Hindu joint family, a
man is entitled to property by birth, which makes coparcenary property an obviously
patriarchal idea. The HSA, passed in 1956, was a compromise law that took a middle ground
between absolute abolition and entire preservation. It made strides to safeguard the property
rights of female heirs who were close to the deceased man by weakening the principle of
survivorship (under which surviving cohabitants share the property) (such as widow, daughter
and mother). Notwithstanding the fact that this was a great step, HSA 1956 also had
additional gender-discriminatory clauses. 27

23
Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1.
24
HINDU SUCCESSION ACT,1956, §23.
25
HINDU SUCCESSION ACT,1956, §24.
26
Global Database on Violence against Women, https://evaw-global-
database.unwomen.org/en/countries/asia/india/2005/the-hindu-succession-amendment-act
2005#:~:text=The%20Hindu%20Succession%20(Amendment)%20Act,same%20manner%20as%20the%20son,
(last visited Feb 22,2023).
27
Dr. Saumya Uma, The Project of Reforming the Hindu Succession Act Is Far From Over’, THE WIRE, (last
visited Feb 22,2023), https://thewire.in/law/hindu-succession-act-women-supreme-court .

Electronic copy available at: https://ssrn.com/abstract=4407565

 Observation
Passing of Hindu Succession Act in the country like India marks a turning point in the overall
development of Hindu law. But also there are some abnormalities in the form of uncodified
Hindu law. Some observation as follows-

 Mitakshara law says that women are not introduced as coparcenary therefore they
are not granted any right to the coparcenary’s property unless otherwise
specified. 28
 A stranger who is adopted joins the family as a coparcener, but a daughter who is
born into the family is not included. She just has a right to maintenance.
 The sons who inherit the land upon succession under Section 8 of the Act would,
by virtue of Section 19 of the Act, take it as their separate property and it would
not be joint Hindu family property vis-à-vis sons of their own.29
 The sons would have to hold it as their male issues as ancestral property, whereas a
daughter, a widow, and other female heirs of Class 1 of the schedule would be
entitled to their share in the undivided interest of the deceased coparcener
immediately. In accordance with Class 1 of the Schedule, a daughter, widow, and
other female heirs, While the sons would be required to hold it as their male issues
as ancestral property, they might undoubtedly take their share in the undivided
interest of the deceased coparcener. 30
 A coparcener has the option to give up his claim to joint family assets. After that,
others split his portion of the property. His female heirs, who lack the legal
standing to contest such actions, are thus left in the dark. 31
 In Hindu families, the males are in charge of arranging the marriages of the
females, and as a result, they are liable for paying the wedding expenditures as well
as other expenses even after the marriage. Whereas on the other hand, The burden
of marriage and upkeep of the unmarried girls in the family has not been delegated
to the newly introduced female heirs, such as daughters and widows. 32

Reforms needed
The codification of the Hindu Personal Law and subsequent legislation, including the
Amendment Act of 2005, have made significant strides towards achieving gender equality in the
Hindu law of succession and inheritance. From the requirement that a widow receive support
after her husband's death to the current provision that daughters have an equal coparcenary right
to the sons. Nonetheless, there are several flaws in the act that persist until now, such as the

28
HINDU SUCCESSION ACT,1956, §6.
29
Yudhister v. Ashok Kumar, (1987) 1 SCC 204 : AIR 1987 SC 558.
30
Supra note 4.
31
Id.
32
Id.

Electronic copy available at: https://ssrn.com/abstract=4407565

gender preconceptions. As the 1956 fundamental law developed, widows' rights were still
constrained to the scope of coparcenary rights. Daughters now receive an equal share after 2005,
while widows continue to be denied a coparcenary right. A coparcenary right in the joint family
property, like the sons and daughters, would be a true recognition of a widow's circumstances
and sacrifices after her husband's death, but the act is still mute on this subject and as a result,
discriminates against the various members of the class of women. Second, the discrimination that
women experience today is also a product of their religious convictions, which are brought about
by outdated customs that treat women unfairly. The goal of establishing a gender neutral system
is defeated on the ground since personal law is so strongly ingrained in religion. 33

The following amendments are being suggested:

(i) The traditional theory of pious obligation should be abolished altogether.

(ii) With the exception of the restriction that, upon her death, her portion in the
coparcenary property will dissolve, a daughter may be constituted a coparcener
and granted equal rights with the son by birth up to marriage.
Unless the court decides otherwise, a coparcenary may not be granted the right to
claim partition for reasons like greater education, choosing to remain single,
choosing to marry outside her caste, and the like. 34
(iii) Whenever necessary, the wife of the senior-most male member or any other
female family member who is capable of managing the home shall be appointed
the karta of the combined Hindu family.
(iv) In order for female tribal members to benefit from the progressive provisions of
the Hindu Succession Act, 1956, it should also be made applicable to members of
the scheduled tribes as defined by article 366(25) of the Constitution.

Conclusion
Every social practice has its origins in culture. Nevertheless, the instant practitioners lose sight of
the practice's core principles, it devolves into an unquestionable, orthodox tradition that must be
followed blindly. Many of our ancient customs and beliefs have evolved past their original
meaning, making them inappropriate in the society we live in today. Due to their lack of
financial resources and mental capacity to take use of the advantageous features, Hindu women
have historically been unable to benefit from laws that were passed in their favour. Even now,
hardly one in ten women are aware of the rights they are capable of exercising, therefore the
reality differs greatly from the letter of the law. The society's legally informed citizens have a
responsibility to see to it that this shortcoming is corrected. Yet, these laws represent a

33
LEGA SERVICE INDIA E-JOURNAL, https://www.legalserviceindia.com/legal/article-6292-how-have-law-
reform-initiatives-in-hindu-law-strengthened-women-rights-in-succession-and-inheritance.html, (last visited Feb
23,2023).
34
Supra note 4.

Electronic copy available at: https://ssrn.com/abstract=4407565

tremendous advancement towards establishing gender equality as intended by our nation's
founding fathers and the writers of our constitution.

Electronic copy available at: https://ssrn.com/abstract=4407565