Shalini Phansalkar Joshi. J, Former Judge, High Court of Bombay, writes on Property Rights of Women and how the Judiciary protects it.

Our Constitution, the basic law of the land, guarantees right to equality.  However in order to ensure that this right does not become illusory, it is essential that women are economically independent. The right to property is far more important for the freedom and development of human beings and for women to achieve the status of equality and real empowerment. The irony however, is that since time immemorial, we find disparity in property rights on the basis of gender. It is deep rooted and can be traced back to the joint family system and patriarchal values which have given rise to coparcenary system. As women were never considered to be the part of coparcenary, under the Shastric and customary Hindu law, therefore, women had very limited or virtually, no right to own or inherit the property. They only had a right to maintenance and could sometimes receive property in lieu of this right. In addition to this, women only had a right to enjoy such property but did not have the  right  to dispose off or alienate it.  On the death of the woman the property in her possession was to revert to her husband’s heirs.

In view thereof and recognizing the need for gender justice, States like Maharashtra, Andhra Pradesh, Karnataka and Tami Nadu made changes in the law around the year 1994, giving equal rights to daughters in coparcenary property.

The earliest legislation bringing female into inheritance was the “Hindu Law of Inheritance Act 1929”, conferring inheritance rights on three classes of female heirs only, viz, son’s daughter, daughter’s daughter and sister.  Thereafter in the year 1937 the Hindu Women’s Right to Property Act was introduced bringing far reaching changes in the law of succession to enable a Hindu widow to succeed along with her son and to take a share equal to son. However she could not become coparcener, even though she possessed the right akin to coparcenary interest. The daughter had however virtually no right of inheritance, till the Hindu Succession Act 1956 was enacted. It was, at the relevant time, considered to be a  revolutionary piece of legislation as there was lot of opposition to the conferring of rights, which were till then unknown, in relation to women’s property In V. Tulasamma Vs. Sesha Reddy   Supreme AIR 1977 SC 1944, the Court, being  cognizant to equality in intestate succession by a Hindu woman, held that, “after the advent of independence old human values assumed new complex; women need emancipation; a new social order needs to be set up, giving women equality and place of honour. Abolition of discrimination based on equal right to succession is the prime need of the hour and temper of the times”. The Supreme Court has, time and again interpreted Section 14 of Hindu Succession Act 1957 to give women absolute right to property even where a Will purported to limit it. It was done by relying upon the Constitutional goal to render socio-economic justice, to relieve the Hindu woman from degradation, disabilities, disadvantages and restrictions, under which women have been languishing over centuries and to integrate them in national and international life.

However   under this Act also though the daughter could inherit a share in her father’s property equal to that of the son but she could not get share in coparcenary or ancestral property. Hence, practically, her share in the property was very negligible, compared to son, who was getting a share, both, in the father’s property and also in coparcenary property, by virtue of his birth as a coparcener. It may be stated that coparcenary was limited only to male members in the family upto three generations.  No female member of the family like wife, daughter, daughter-in- law could become a coparcener. Hence daughter’s rights became very limited. She could not ask for partition of her share in dwelling house, like a son. It was a clear case of gender discrimination and as observed by 174th Law Commission Report, “it has also led to oppression and negation of her fundamental right to equality”.

In view thereof and recognizing the need for gender justice, States like Maharashtra, Andhra Pradesh, Karnataka and Tami Nadu made changes in the law around the year 1994, giving equal rights to daughters in coparcenary property. On the same lines, equal rights were given to daughters in ancestral property. Central Government amended Section 6 of the Hindu Succession Act 1956 with effect from 9/9/2005, declaring that the daughter of a coparcener shall, by birth, become a coparcener in her own right in the same manner, as the son and shall have the same rights and liabilities in respect of coparcenary property as that of the son. This Amendment was, however subject of litigation in various High courts on the question, whether it was retrospective, prospective or retroactive  and the apex court was, ultimately in the case of Praksh V/s Phulvati (2016),2,SCC, 36, pleased to hold that “the rights under the Amendment are available only to living daughter of  a living coparcener, meaning thereby that in order to get the right of coparcener given under the Amendment, both the daughter and the father must be alive on 9/9/2005, when the Amendment came into effect and the property must not have been partitioned before 20/12/2004, the date on which  the Amendment Bill was introduced in the Parliament.

The earliest legislation bringing female into inheritance was the “Hindu Law of Inheritance Act 1929”, conferring inheritance rights on three classes of female heirs only, viz, son’s daughter, daughter’s daughter and sister.

Thus it can be definitely concluded that in the empowerment of women and towards achieving gender justice, both, the laws and judiciary have played a very important role. Though it would be a myth to assume that laws alone can change the social mind-set of patriarchal values, it cannot be disputed that laws and their pragmatic interpretation by the judiciary have given necessary push to  women’s struggle for equal rights.

Shalini Phansalkar Joshi. J is guest writer with Population First. This series is being published in collaboration with Laadli. The views expressed are the author’s own.

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