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How have Law Reform initiatives in Hindu Law Strengthened Women Rights in Succession And Inheritance

How have Law Reform initiatives in Hindu Law Strengthened Women Rights in Succession & Inheritance over the past several decades? What more needs to be done?

The Constitution of India through its Article 15 aims to establish a societal existence where every human is treated equally. However the plight of women has always been at stake when gendered notions came into play. Subsequently the constitution of India also aims at creation of the said societal existence of equality and justice values through the legislative practices.

The present paper focuses on the legislations or Law reform initiatives in the Hindu Law that aimed at strengthening the position of women in the inheritance and succession avenues of property and lineage. Historically, the uncodified personal law was governed by the Manusmritis which was later replaced by the codified law of Hindu Succession Act 1956.

The legislations have come a long way in affording an equitable right to the women who were seen as a dependent gender. Today the sons and daughters are treated at par with each other in terms of property inheritance which is a step forward from a society where daughters were not even considered for carrying the lineage ahead.

The law reforms have strengthened the rights of women in a way where they have become self dependent to run the families own their own after the death of their husband. While the establishment of a different approach from gender inequality to gender equality, the law reforms have a substantive contribution but ultimately it is the religious subscription that became a problem in the Indian Society.

The personal laws being so internally attached to the religion were inherently difficult to modify and more importantly applying the mandate of that modification on-ground. The society believed that women should depend on her father during her childhood and on her husband after her marriage and were never granted the rights to manage the property.

However, the different prevailing conditions in the lives of women necessitated for a more comprehensive act. For instance, a widow would need some subsistence support after the death of her husband and an unmarried daughter would require a support before her marriage.

The paper aims to discuss the timeline changes that originated in the form of women movements and have now come to a more holistic act governing the society. The paper also aims to touch upon the gendered notions that existed and how they have now evolved with the passage of time.

As the society keeps on developing, there is also a substantive change that comes in the mindset of citizens hence warranting the need for amendments. However there have been amendments in the past but the loopholes still continue to exist. The paper also discusses the loopholes and possible solutions to address those limitations in the act.

It would undoubtedly not be an overstatement to say that we have come a long way in terms of women's rights in India. However at the same time it becomes imperative to examine the roots from where the very concept of these rights emerged. The Dharamshastras - which also became a guiding force to Britishers' understanding of the Hindu Law and holds a concrete position in the construction of what we see today as the Hindu Succession Act.

The Mitakshara
and The Dayabhaga School of thoughts governed the position of succession laws in India. The Mitakshara on one hand distinguished between the separate and joint family property where when the issue of women rights in the property of her husband arises, it was only the 'separate property' where the widow of the deceased husband could have any rights over the said property but they were in essence limited.

The widow could have access to the property only till her lifespan after which it was to be restored to the original heirs of the deceased husband. However the limited character of enjoying such property was also due to the absent alienation rights. On the other hand, the Joint family Property could only be enjoyed by the male descendants, known as Coparcenars.

According to the Mitakshara system, the women and daughters could not be the coparceners in the joint family property and ultimately could not have access to the rights over that property. The other prevailing system was the Dayabhaga System, where the property was only divided at the time of death when it flows to the sons of the deceased. In the absence of the male descendants, the widow could have rights over the property but not extending to alienation.

However the daughters could also have rights over that property but were given preference only after the widow. Both the systems of succession and inheritance sought to provide the property rights to women on a secondary preference only where the male descendants were missing; this reflected the prevalent societal conditioning that thought of women as ineligible to manage property and aimed at the continuance of dependency of women on males for bread and butter.

However keeping aside the gender lens, it was the subsistence need of that widow who lost her husband and could have highly limited rights over the property of her deceased husband. This necessitated the need for a more comprehensive framework that could provide women with the rights over property, where agriculture land for instance was the source of subsistence unlike today where there are immense job opportunities with established quota for females.

Subsequently, with the increasing participation of women at legislative fronts however very minimum, the Hindu Women's Rights to Property Act 1937 was passed amidst strong opposition which sought to provide widows with an equal share right over the property of her husband as his sons and a maintenance authority of her husband's coparcenary share till her death. It was seen as a constructive step in bringing about a change in the societal functioning and afforded a share with respect to property rights.

It was true that with the rolling in of this act the gender dependency was reduced to certain extent but the women leaders sensed the notional presence of gender disparity. They recognized two loopholes in the legislation firstly the act excluded from its ambit the daughter rights in her fathe's property. Secondly, the Agriculture lands which were the main subsistence asset of that time were excluded from its purview.

This called for a rather more concentrated work towards the women rights and aimed at the establishment of a committee to work in this direction which could at times provide inputs on fighting the gender notional practice of suppression. Subsequently, the Rau Committee was established to provide more representation to this issue and direct at the necessary policy changes. The committee prepared the draft for social upliftment of the status of women in this direction.

One of the main aims of the committee was to afford certain right to daughters with respect to the property. The Rau committee was successful in drafting a code to such effect but the low representation of women on the political fronts led to its failure many times. It was finally in 1951, when the Hindu Code Bill was accepted and various changes were affected in the Hindu Succession Laws. And ultimately, the Hindu Succession Act 1956 came into effect.

Hindu Succession Act 1956
The Hindu Succession Act 1956 was a way forward in bringing about a change in the status of women rights where its ambit granted daughters a right in the property of their father which were not in place before the legislation. The act aimed at reducing the gender differentiation between males and females as the heirs of the family property. The act being a personal law required the state legislator support for its aimed objective fulfilment and to prevent the women from facing regional disparities.

Hence, the act replaced the Aliyasantana Act, the Travancore Nayar Act and many more to affect a uniform framework in the establishment of increased women authority in terms of property inheritance and succession. The daughters would now were eligible to hold a share in the notional partition of their fathe's property. However the law was still silent on the coparcenary rights of women in the joint family property.

The difference in the share of sons and daughters to the tune of joint family property was still seen as a stigma and was considered a reason of blatant preference for men in the society as they were entrusted to carry forward the lineage and daughters in the absence of these rights were considered more dependent on their marital homes. This lead to visible disparity in the society where the intent of the law governing the whole society was itself reflecting its flawed gender notions with its limited rights to the daughters.

Amendment Act 2005
This unequal standing of women in the society was sensed to be an outcome of the irregularities in the HSA 1956 where on the fronts of social justice and majorly the property inheritance avenues, the women were afforded a lower standing. The 174th law commission report to this effect recognized this unequal social standing of the women in the society and specifically pointed towards the discriminating clauses in the codified law.

However the state legislations to this personal law were appreciated in the states of Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu where the amendments partially swept the discriminated clauses but the need was of a central act modification which could work as authority in granting rights to the women. The law commission report contributed immensely to the foundation of the Hindu Succession Amendment Act 2005 that served the long impending social justice to the women rights.

The Amendment act stuck off the Sections 23 and 24 with major amendment in the Section 6 affording a more beneficial on-ground equality. The Amendment Act stuck off the Section 4(2) which held the participation of women in inheritance of even the agricultural lands. The act also with its amendment in Section 6 granted a by-birth coparcenary right to the daughters equal to the male descendants in the joint family holdings.

It was in the case of 'Vineeta Sharma vs. Rakesh Sharma', that the Hon'ble Supreme Court cleared the applicability of the said amendment where the law was applied retroactively. The court referred to the intention of the legislation that the coparcenary rights were promised to the daughters by birth and it was irrelevant that the father was alive on or after the amendment i.e. 09 September 2005.

The amendments in the original act of Hindu Succession Act 1956 truly served justice to the women rights where it would provide a social standing to women in the society and moreover an economically secure future where at the same time entrusted with the belief of carrying the lineage of family ahead. However it can be said that there are still scopes for more amendments but the law has definitely come a long way from initially legislating for a widow's subsistence needs to adopting a gender lens in affecting equity in the society.

Gendered Notion in the Reforms
It is the foremost expectation from legislation to be able to produce equality and offer the opportunities from a gender neutral point of view. However as we see today there are various avenues where women are placed at par with men, be it in educational sector where the seats are often reserved for females, or in parliament where they are given a fair chance considering the magnitude of representation they have received in the past.

But the equality that we see as existing today is a long fought battle. This is evident from the opposition that the Hindu Code Bill (HSA) faced. The women were referred by the Anti HSA groups as requiring the protection of men at all times whereas the proponent's claimed that with liberty and freedom they can interact with other humans in a very efficient manner.

The women were also claimed to be causing destruction in the long running joint families and the families would break if they were given the rights to manage the property. However this perception was defeated when the names of women who lead movements in the past came to the table. It was the near future that revealed the efficiency of providing women with a more equitable position in the households and upliftment of their social bearing.

The relationship of women's property ownership and socioeconomic outcome from it had concluded that women give more value to the family needs, For instance, in India the increase in income of the lower-caste women exponentially increased the expenditure on schooling (Lake and Munshi 2011) which was a way towards achieving a well developed and mindful societal establishment.

What more needs to be done
With the coming in of legislations from codifying the Hindu Personal Law to now the Amendment Act of 2005, the Hindu law of succession and inheritance has achieved milestones in the way of establishing gender equality beginning from the codification requirement for a widow's subsistence after her husband's death to now granting daughters with an equal coparcenary right as the sons. However there are still some shortcomings in the act where the gender notions are even prevalent today. As the principle act of 1956 progressed, the rights of a widow are still limited to the extent of coparcenary rights.

After 2005, daughters are afforded an equal share but widow's still do not have a coparcenary right. It would be a true acknowledgment of a widow's condition and sacrifices after the death of her husband if she had a coparcenary right in the joint family property as the sons and daughters but the act is still silent on this note and in-turn discriminates between the different members of the class of women.

Secondly, the discrimination that women face today is also the result of their religious beliefs that results from the existence of old practices which treats women differently than men. The personal law is so deeply rooted in the religion that the objective of affecting a gender neutral system gets defeated on ground. Essentially when the devolution of the property of women takes place, the heirs of the husband gets a priority than the women's heirs including siblings and parents.

However this is not the case when the men's property devolution takes place, there is no mention of female heirs who could inherit the property but only the husband's heirs are given a preference. This marks the presence of patriarchy in property devolution and still the existence of discrimination on the basis of gender can be sensed. Hence, the devolution of property of males and females should be articulated in a similar pattern whereby treating the natal families of both with a similar standing.

The property rights are a very essential part of the subsistence needs and a way of carrying forward the lineage. It has time and again proved essential for an economic and social standing but will it be acceptable to say that only men needs this social standing? The most common response to this would be a NO however it is so embedded in our social structure that women still suffer a setback when this appears as a question to carry forward a lineage.

The law reform initiatives have surely come way forward in causing an end to this gender based discrimination whether it was the first codification of Hindu Personal Law and doing away with the Mitakshara and Dayabhaga School of thoughts or providing a right of share to a daughter in her fathe's property. However it cannot be said to have progressed to an extent that is needed to equate the socioeconomic standing of both genders. But with the adoption of a gender neutral lens the legislators can be entrusted to take a decision that places both the genders at par with each other.

Secondary Sources
  • Sona Khan, ��Inheritance of Indian Women: a Perspective�� (Jstor2000) ;accessed November 10, 2020
  • Reena Patel, ��Hindu Women's Property Rights in India: A Critical Appraisal�� (Jstor2006) ; accessed November 07, 2020
  • Aparajita Goyal, ("Women's Inheritance Rights and Intergenerational Transmission of Resources in India" by Klaus Deininger 2013) ;accessed November 10, 2020
  1. Hindu Succession Act 1956
  2. The Hindu Succession (Amendment) Act, 2005
  3. The Hindu Women's Rights To Property Act, 1937
  4. The Madras Aliyasantana (Karnataka Amendment) Act, 1961
End Notes
  1. 174th Law Commission Report, Property Rights of Women: Proposed Reforms Under the Hindu Law (2000).
  2. Vineeta Sharma vs. Rakesh Sharma, (2019) 6 SCC 162.
  3. Section 23; disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section [Now Repealed].
  4. Section 24 ; Certain widows remarrying may not inherit as widows [Now Repealed].

Award Winning Article Is Written By: Mr.Aman Sharma
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