“Law is generally understood to be a mirror of society — a reflection of its customs and morals — that functions to maintain social order.”
At the outset it is necessary to mention that women in India belong to different faiths. Hence, the “right to property” of women varies according to their religion. In the present article we shall only be covering the right of inheritance of Hindu women. A Hindu woman could be a follower of any of the following faiths:
Inheritance rights are a complex gamut. They change in accordance with the relationship vis-à-vis the male from whom the property is being inherited by a Hindu woman. The male could be father, husband or son and in certain cases there are overlapping and multiple rights which accrue to women.
There are also different kinds of properties which women are entitled to inherit, these could be self acquired properties of their father, husband or son or they could be joint properties which the family holds in addition to certain self acquired properties.
Further, there are two kinds of succession to property which are available to Hindu women (as also to men) in India, namely, intestate and testamentary succession.
Testamentary Succession:
When a person writes a will/ testament/ codicil for disposition of his or her property post their death then the beneficiaries will inherit through testamentary succession. The will/ testament/ codicil usually mention the name of an administrator or an executor who gives effect to the Will. In the absence of the name of an administrator or an executor, a beneficiary who is inheriting the property is also obliged to give effect to the will.
A will/ testament/ codicil may be written in any format. It does not require any registration. It can also be in a video format.
By way of a will/ testament/ codicil any person may give away his or her share in a property/ies, whether movable or immovable to any one or multiple persons defining their shares. By way of a will a person may even give rights to his legal heirs in his undivided share in any property/ies.
Any person can thus leave to any person whether a man or a woman any property/ies which could be movable and/or immovable. This method of inheritance or succession is also used to deprive any particular person/s who is otherwise entitled to receive a share in the property of a deceased through intestate succession.
Intestate Succession:
“Hindu Succession Act” defines the right of inheritance of Hindu men and women through intestate succession. It is applicable to all the four aforementioned faiths.
After the passing of the Hindu Succession Act, women became absolute owners of all the property they received in inheritance and gifts along with all the property which was self acquired by them. Before the passing of this Act, women only had life estate or limited rights of inheritance which after their death reverted to the male lineage they had inherited it from. Hence, they only had the right of possession and could not dispose off those properties through sale or lease or mortgage them. This position changed after the passing of the Hindu Succession Act.
Under the Hindu Succession Act a succinct way of describing the rights of Hindu Woman is as follows:
Rights of Hindu woman through husband:
Self Acquired property:
As per the Hindu Succession Act, 1956 a wife is a Class I heir and if her husband has died intestate i.e. without a Will she will inherit the property equally with the other Class – I legal heirs.
Joint property which is ancestral in nature:
Rights of Hindu woman through Father:
Historically, Hindu women were not treated as equals in matters of inheritance of property so far as their father’s property was concerned. It was believed that when a daughter was married, the money spent by her parents on her wedding and the gifts she received at the time of her wedding and child birth/s are all that she is entitled to receive from her parents. Most Hindu households did not consider the daughter to be a part of her father’s family after her wedding. The legal position as it stood clearly supported this stand of Hindu families.
It was also believed that if Hindu women are given rights in the dwelling houses (immovable property) of their fathers then they will seek a physical share through partition in the immovable property after the death of their father and this will lead to disturbance in the rights of enjoyment of property by their brothers. This obviously implied that sons were the ones entitled to the property of their fathers. An unmarried daughter only had a right of residence in the property of her father.
In the history of inheritance rights of Hindu women, the year 2005 is a watershed year when a significant amendment was made to the Hindu Succession Act.
2005 onwards
Women were not considered as coparceners before 2005 and hence could not inherit coparcenary property from their fathers, if their fathers were coparceners in undivided interests of a joint family property.
Since, the codification of the Hindu Succession Act it was only the sons/ males in the line of inheritance who were considered as coparceners. Therefore, women could never inherit the property of their father acquired through a coparcenary.
In 2005 an amendment was introduced in the Hindu Succession Act whereby:
a) The daughters have became equal coparceners, in their own right, as it was provided that the daughter of a coparcener, shall by birth become a coparcener in her own right in the same manner as that of a son,
Hence, daughters were made coparceners who had equal rights in coparcenary property of their fathers provided their fathers were coparceners. Thus, amendment in Section 6 removed gender discrimination from Mitakshara joint family property inheritance rights.
This amendment changed the belief that after her marriage a daughter belongs to her husband’s family only. The amendment thus does not only have economic repercussions but also has a symbolical effect. This was a momentous change in the history of inheritance rights for daughters as daughters were for the first time considered equal in their relationship vis-à-vis sons.
A few features of the amendment were struck down by the Hon’ble Supreme Court of India vide the judgement passed in Vineeta Sharma’s case in the year 2020. The judgement clarified that since the right of inheritance accrued to daughters from the time of their birth just like for male heirs hence there could not be any cut off date as stated in the amended Act. It was held that daughters whether married or not shall have a right in the coparcenary property of their fathers since birth.
Rights of Hindu woman through son:
Self Acquired property:
As per the Hindu Succession Act, 1956 a mother is a Class I heir and if her son has died intestate i.e. without a Will she will inherit the property equally with the other Class – I legal heirs.
Present position:
It has recently come to the fore that there is discrimination in the inheritance rights under Section 15 of the Hindu Succession Act, which accrues on the death of a Hindu woman. It is observed by certain scholars and some State High Courts in India that while the family of a Male Hindu gets an advantage and the family property stays within their bloodline through inheritance the same is not true for inheritance through a Hindu Female. The inheritance rights of the property acquired through a Hindu woman do not favour her own parents or siblings. This issue is at present pending before the Hon’ble Supreme Court of India for a decision.
Evolution in law has brought about a change not just in inheritance rights of Hindu women but has also caused a change in perspective of the society at large.
Shweta Kapoor Associate Partner Singhania and Co. LLP
Insta @shwetakapoor
Disclaimer: This piece is only a working guide and is not a definitive legal opinion. For any case specific advice services of a lawyer must be engaged in order to understand the applicable law in the facts and circumstances of specific cases.
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Shweta Kapoor
( India )