It is well known that Indian society is largely patriarchal, and the
preference privileges granted to men with regard to property is simply one more
example of the male-centric socioeconomic framework. Women's property rights
have been a topic of debate for a very long time because of entrenched
stereotypes in society and culture. It is a very recent development to grant
women the ability to inherit, possess, utilise, and dispose of property.
In India, people of different faiths are subject to distinct laws regarding
inheritance and property distribution. In other words, personal laws differ
depending on the community. The Hindu Succession Act of 2005 regulates property
inheritance and distribution among followers of the Hindu, Jains, Sikh, and
Buddhist faiths. Muslims are covered by the Muslim Personal Law Application Act
Women's property rights under Hindu Law
In ancient India, two Hindu legal schools that were respectively enforced in
various regions of the nation, the Dayabhaga School of Law and the Mitakshara
School of Law, greatly influenced the way that property inheritance rights were
governed. In neither of these schools were women given much property rights.
However in the present period, with circumstances changing, it has been
acknowledged that for the advancement of the country, women likewise need to be
accorded the same position and rights as men. Thus, the Hindu Succession Act,
1956, which was the first significant piece of legislation recognizing women's
rights to inherit property, came into existence in the year 1956.
Since then, as the time has passed, women's rights to inherit property have
evolved and advanced significantly. The most recent and important change to
women's rights to inherit property was made in Section 6 of the Hindu Succession
Act, 1956, in the year 2005.
The Hindu Succession Act of 1956, was the first standard regulation in the area
of inheritance for Hindus as it was applicable to both the Mitakshara and
Dayabhaga schools as well as to the regions of southern India that were formerly
controlled by a matriarchal system of Hindu law.
In addition to granting women the right to inherit property from a male heir,
the Act of 1956 also served to clarify the situation by eliminating the idea of
a women's estate and expanding the idea of Stridhan so that it now encompassed
both moveable and immovable property.
It made two significant changes:
Holding of property Section 14 of the Hindu Succession Act, 1956 states:
"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."
A Hindu woman now had complete ownership of any property she owned. In
Pratap Singh v. Union of India (1985), Hindu men argued that Section 14
was unconstitutional because it violated their right to equality under
Article 14, which is protected by the constitution. Nonetheless, the Supreme
Court that neither Article 14 nor Article 15 were in any manner violated by
the provision of section 14. It was constitutional because it was necessary
to strengthen women's rights.
Disposition of property As women possessed complete ownership of all the property they had, they now
had the freedom to freely transfer or sell such property and use the
proceeds of such sales anyway they wish. Regarding the testamentary
disposition, she had the right to make a will to dispose of the property she
had obtained on her own (self- acquired property).
The Hindu Succession Act
of 1956 opened the door to intestate and testamentary property distribution.
Women, however, were not permitted to dispose of coparcenary property by
will; only men were permitted to do so.
This act was then amended and Hindu woman's right after Hindu Succession
(Amendment) Act, 2005 was introduced. The then classical notion of coparcenary
which only included male members underwent a change by the legislature in the
year 2005 through the amendment in Section 6 of the Hindu Succession Act, 1956,
daughters were accepted as coparceners and were given the right by birth in the
It amended two major changes:
The Hindu Succession Act, 1956 was then amended by the Hindu Succession
(Amendment) Act, 2005, which brought subsequent changes to include Hindu women's
rights. By amending Section 6 of the Hindu Succession Act of 1956, daughters
were now acknowledged as coparceners and were given the ability to inherit the
ancestral property by birth, changing the traditional understanding of
coparcenary, which at the time exclusively included male relatives.
It made two significant changes:
- Holding of property
Daughters were made eligible coparceners in the Joint Hindu Family of their
father. Moreover, her marital status would be irrelevant in this regard. It
substituted Section 6 of the 1956 Act and now states:
"On and from the commencement of the Hindu Succession (Amendment) Act, 2005,
in a Joint Hindu family governed by the Mitakshara law, the daughter of a
Hindu women are now on an equal footing with males and enjoy all the same
privileges as sons in terms of the coparcenary.
- By birth become a coparcener in her own right in the same manner as the
- have the same rights in the coparcenary property as she would have had if she
had been a son;
- be subject to the same liabilities in respect of the said coparcenary
property as that of a son.
The Supreme Court ruled in Prakash & Ors. v. Phulavati and Ors. (2016) that:
"Only surviving daughters of living fathers could become coparceners" and that
if the father passed away prior to the commencement date of the Hindu Succession
(Amendment) Act, 2005, there would be no cause of action.
As a result, the Act
could not be applied retrospectively, and in the case of a predeceased father,
the property would pass according to the laws of survivorship. Hence, a daughter
of such a person whose father passed away before to the commencement date of the
Act could only be entitled to his own property and not coparcenary property.
- Disposition of property
As mentioned before, the 2005 Amendment substituted the former Section 6.
Section 6(2) and Section 6(3) deal with the disposition of the property.The
former gives the authority to a female coparcener to dispose of her coparcenary
property as per her will. It has also been stated above that with the amendment,
daughters have been brought at par with sons.
As a result, they were even
entitled to hold the coparcenary property as well as ask for partition in such
property. Thus, in such a case, a woman should even have the right to dispose of
her property as per her wish i.e., make a testamentary disposition of such
property. Section 6(2) which has been inserted allows this and says that a
female coparcener can dispose of her coparcenary property by way of a
As previously stated, the 2005 Amendment substituted the previous Section 6.
Sections 6(2) and 6(3) deal with how the property is disposed of. The former
enables a female coparcener to dispose of her coparcenary property in accordance
with her wishes.
Also mentioned above is the fact that daughters and sons now
share the same rights. As a result, they have the right to hold the coparcenary
property and request a partition of it. Section 6(2), which states that a female
coparcener have the freedom to dispose of her property as she sees fit and may
dispose of her coparcenary property by a testamentary disposition.
Section 6(3) addresses cases of property devolution in the event of a Hindu's
death. It specifies that property will be divided in accordance with the laws of
intestate or testamentary succession and that it will be handled as though a
partition is happening. Additionally, it specifies clearly that female
coparceners have the same rights to a share as other male coparceners. Also, the
heirs of a predeceased son or daughter would be qualified to receive such a
share of the estate.
Women's property right under Muslim law
Indian Muslims are governed by their personal law i.e. the Muslim Personal Law (Shariat)
Application Act, 1937. The sources for Muslims' laws about inheritance are
derived from the Quran (Sunna), the consensus of educated men (Ijma), and
deductions from morality and what is just and right (Qiya). In the absence of a
will, the law of succession for Muslims shall be as per the Shariat.
Property rights of Muslim Daughters
According to the law of inheritance under muslim law, men and women are treated
equally and none receives preferential treatment. Men, however, own twice as
much property as women do. Whereas the daughter is the sole owner of any
inherited property. She is legally entitled to handle, manage, control and
dispose of it whenever she pleases.
The consensus is that women receive Mehr
after marriage (money or possession given by the groom during the marriage). Her
share is divided in half because her brother is entirely dependent on the
ancestral property and she is supported by the husband as well.
Also, she is qualified to receive presents from those she would inherit from.
This is paradoxical because women can only inherit a third of the man's portion
but can easily accept presents.
A daughter has the right to live at her parent's home and seek maintenance while
she is still unmarried. In case of divorce, after the iddat period, or around
three months, is finished, the responsibility for maintenance reverts to her
parent's family. Also, it is her children's responsibility, if they can so
afford, to support her.
Property rights of Muslim widows
A Muslim widow who is childless is entitled to one-fourth of her husband's
estate. However, only after the deceased's loans have been paid off (if any) and
his burial costs have been covered can the precise amount of inheritance be
In the event that the widow has children and/or grandchildren, her portion of
the estate is equal to one-eighth of the deceased husband's estate.This portion
could be reduced to one-sixteenth if there are multiple wives.
Muslim woman's property rights after divorce
After the divorce, the woman will be entitled to all rights to deferred Mehr if
she has any.
According to Section 125 of the CrPC, a divorced woman with a minor child may
petition her ex-husband for maintenance until she marries again.
The Supreme Court ruled in the well-known Shah Bano case that in the event of a
divorce, it is the husband's duty to provide for his former wife's maintenance
even after their separation.
What are the property rights of a mother in Islam
A Muslim mother has the right to inherit from her independent offspring. If her
son (deceased) is also a father, she is entitled to inherit one-sixth of the
estate of her deceased kid. She would receive the third portion if she didn't
have any grandchildren.
Also, if a mother inherits property from any relative, she takes full ownership
of her portion and is free to do with it as she pleases. If her spouse is the
only heir, she may leave two-thirds of her estate in her will, but she may not
give away more than one-third of it.
While examining all of India's succession rules, it is evident that the
country's legislators made an effort to uphold the rights of women. Whether a
woman is a wife, mother, or daughter, she is legally entitled to receive a
portion of the estate.
It is up to the women to be aware of their rights and act proactively in
asserting them and claiming what is lawfully theirs, even if our legislation and
judiciary have made it possible for women to claim their inheritance rights
without being constrained by marriage and religion.
However, many women are still unaware of their rights and believe they have
little control over their properties. The only tools available to women for
combating any injustice meted out to her at home, at work, or in society are
their awareness of their rights and the bravery to assert them.