Celebrating Women’s Day: Understanding Property Rights for Women

womens day

Women have been subject to bias in property matters. Woman’s day is an opportunity to ponder over such inequalities and initiate measures for empowering women about their property rights.

Today women are financially independent. Our legal system recognizes their rights in the property as independent owners. The Government has given many relaxations like lower stamp duty rates, to encourage women ownership.  

In India various factors govern the rights of a woman:

  • Marital status
  • Property is ancestral, inherited or self-acquired
  • Property is parental or belongs to her in-laws or husband
  • Personal laws applicable to a woman
  • Rights of woman as a daughter, wife or mother

Read More: Indian Women’s Right to Property

Property Rights of Women as daughter, mother, wife:

Hindu Law:

  • A daughter is a coparcener. She has equal rights in the ancestral property of her father, as her brother, even if she is married.
  • As a wife, a woman has equal right in the property of her husband as other legal heirs.
  • A daughter in law has no right in the property of her father in law till the time her husband is alive. After the husband’s death, she gets a right in the share which her husband is entitled to get.
  • A woman who gets the property by any mode: gift, Will or inheritance, she becomes the absolute owner and is free to deal with it.
  • In the case of intestate succession, a widow has equal right in the property of her husband as her children. A widowed mother also has an equal share in the property of her son as other legal heirs.
  • The wife from the second marriage has the same rights in the property of her husband as the first wife. The second marriage must be valid under the law. 
  • The children (daughter and son) of the second wife are treated at par with the children of the first wife to inherit from the self-acquired property of their father. They do not get right in the ancestral property. 
  • The right of women in agriculture land needs a separate mention. These rights depend upon customary practices and personal laws. After the amendment of 2005 in the Hindu Succession Act, women are at par with men in the inheritance of agriculture land. But some States do not follow the amendment, and the bias continues.

Read More: Property Rights of Women as per Hindu Law

Muslim Law:

Property rights under Muslim Law are based on personal laws and customs. If a Muslim woman inherits property, she becomes the absolute owner of her share. In inheritance, she gets half the share of what male heir gets. 

If a Muslim woman wants to make a Will of her property, she cannot give away more than one-third share of her property, and if her husband is the only heir, she can give two-third share by Will. 

Other faiths:

For faiths other than Muslims and Hindus, the property rights of woman are mostly fair in terms of gender divisions.

Read More: When can or can’t a daughter stake a claim in her fathers’ property

Protection of inheritance rights of women and varying succession laws

Protection-of-inheritance-rights-of-women-and-varying-succession-laws

In our traditional patriarchal society, women have always had fewer rights. Women have been subjected to discrimination, especially in property matters. Inheritance rights of women to the property of her parents or husband has never been taken seriously. Property has always remained the domain of the men. Somehow, women also never bothered to raise their voice against the said bias.

Now things are changing. Women have progressed in every sphere of life. They are educated and employed. Women of the present times are proud owners of self-acquired properties and handle their financial matters by themselves. They have earned recognition for themselves being self-reliant and have compelled the society to ponder over their inheritance rights. 

Read More: Opening an NRO Account – steps, details, requirements

Succession laws vary:

The social fabric and religion influence the inheritance rights of women. The question of inheritance/succession arises-

  • In the case of ancestral property 
  • In case of a person having self-acquired property dying intestate

In some communities, the rights have been strengthened by codifying inheritance/succession laws.

Whether a woman can be a successor to the property depends upon the personal and customary laws. 

  • The relevant succession law for Hindus (Hindu, Sikh, Jain and Buddhists) is found in the Hindu Succession Act, 1956. A daughter inherits equally as a son in her father’s property, whether self-acquired or ancestral.  A wife gets equal share as her children in the property of her husband if he dies intestate. A Hindu woman is the absolute owner of her property which she inherits or receives as a gift. 
  • Indian Succession Act, 1925 governs the inheritance and succession laws applicable to Parsis, Christians and Jews. A Christian daughter and son have equal rights in the property of their father. A Christian wife gets one-third of the property of her husband depending upon the presence of lineal descendants.
  • Muslim woman gets a share as per the personal laws. Generally, she gets one-fourth of her husband’s property if no children are there but one eighth if children are there. The daughter receives half the share of her brother in father’s property. 

Read More: Succession Certificate and the procedure to acquire it

Protection of women’s inheritance rights: 

There is no substitute for education and awareness about one’s rights. It is the key to safeguard the rights of women. Some other factors that can assist in the protection of inheritance rights are:

  • Government policies and laws favouring women help to neutralize the bias. E.g. payment of less stamp duty and fewer taxes, in case of registration of property in the name of a female. It works as an incentive and lots of people prefer to buy the property in the name of the women.
  • The dependency of inheritance on personal laws leads to a lot of confusion and misinterpretation of laws. A codified and uniform inheritance law will benefit more. 
  • There is a need to renounce the practice of sacrificing one’s share in favour of male heirs. Many women themselves give up their share in the ancestral or self-acquired properties in favour of male heirs. 
  • A new concept of setting up of a spousal trust is coming up these days. Women are signing prenuptial agreements to safeguard their pre-marriage wealth. The trust also protects the women against matrimonial disputes. 

Creating an environment encouraging women to be self-reliant will go a long way to protect a woman’s rights.

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Women Rights in India: Constitutional Women Rights

Women Rights in India Constitutional (1)

The Constitution of India not only allows equality to women but also empowers the State to use measures of positive discrimination in favour of women for neutralizing the cumulative socio-economic, education and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of the law; prohibits discrimination against any resident on the grounds of religion, race, caste, sex or place of birth, and ensure equality of opportunity to all citizens in concerns relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of special importance in this regard.

The women rights in India and safeguards well-preserved in the constitution are listed here:

  • The state shall not discriminate against any native of India on the ground of sex [Article 15(1)].
  • The state is authorized to make any special provision for women. In other words, this provision permits the state to make affirmative discrimination in favour of females [Article 15(3)].
  • No citizen shall be segregated against or be unsuitable for any office or employment under the state on the base of sex [Article 16(2)].
  • Traffic in human beings and enforced labour are banned [Article 23(1)].
  • The state to secure for male and female equally the right to a sufficient means of livelihood [Article 39(a)].
  • The state to ensure equal pay for equal work for both Indian male and female [Article 39(d)].
  • The state is needed to ensure that the strength and health of women workers are not abused and that they are not obliged by economic necessity to enter avocations unsuited to their strength [Article 39(e)].
  • The state shall make procurement for securing just and humane conditions of work and maternity welfare [Article 42].
  • It shall be the duty of every native of India to renounce practices derogatory to the dignity of women [Article 51-A(e)].
  • One-third of the entire number of seats to be filled by direct election in every Panchayat shall be reserved for females [Article 243-D(3)].
  • One-third of the entire number of offices of Chairpersons in the Panchayats at each level shall be reserved for females [Article 243-D(4)].
  • One-third of the whole number of seats to be filled by direct election in all Municipality shall be reserved for females [Article 243-T(3)].
  • The offices of Chairpersons in the Municipalities shall be reserved for females in such manner as the State Legislature may provide [Article 243-T(4)].

Though the position of women has developed in the last four decades, however still they are struggling to maintain their freedom and dignity. Presently Indian women are suffering from the toughest time physically and mentally, mainly due to unawareness and lack of information on legal and constitutional woman rights in India. The Constitution provides many protection women rights such as Protective discrimination in favour of women, Right of women against exploitation, Rights of women under directives, Right to freedom of women and political representations of women.

Muslim Woman’s Right to Property in India!

Muslim Woman’s Right to Property in India

In continuation of our previous newsletter Blog on Hindu women’s property rights in India, this time we are giving a perspective on the Muslim women’s property rights in India. Like we discussed earlier every religion practised in India is governed by its respective personal laws including the property rights.

In India, Muslims do not have classified property rights, and they are governed as per the two schools of the Muslim personal law – the Shia and the Hanafi.

Following are some general rules of inheritance for women as per the Muslim personal law:

  • A Muslim mother is qualified to inherit from her children if they are independent. She is likely to inherit one-sixth of her dead child’s property if her son is a father as well. In the absence of grandchildren, she would get the one-third share.
  • A Muslim daughter owns whatever asset she obtains. If she has no brother, she gets half of the share. It is legally hers to manage, control, and to dispose of the property whenever she desires.
  • She can also receive gifts from those she would inherit the property from.
  • Until a daughter is unmarried, she is eligible to stay at her parents’ house and seek subsistence.
  • In case of a divorce, the charge for maintenance reverts to the women’s parental family after approximately three months period is over.
  • However, in case her children are in a position to support her, the responsibility is on them.
  • In the event of the death of husband, a widow is entitled to one-eighth share in case they’ve children, but if there are no children, the woman will get only one-fourth share.
  • In case a husband has more than one wife, the share comes down to one-sixteenth.
  • Islamic law also provides financial security for the Muslim woman in the following ways:-
  • A Muslim wife is entitled to receive total money or property from her husband at the time of marriage.
  • The wife may inherit a higher amount of will when there are no heirs for the estate as prescribed by the law because a Muslim cannot give away more than one-third of his/her total property through a will.

LEGAL RIGHTS OF A WIFE

Legal Rights of wife in India

Marriage is defined as the union of a man and a woman which is recognized by law and by which they become husband and wife. It’s a type of social union between two individuals that establish a certain type of rights and obligation between them, their children and their respective in-laws.

The Constitution has provided many rights to the wife. Some of the key rights are:

  • Right to Streedhan:
    Streedhan is the property which a woman obtains at the time of her marriage, it is different from the Dowry in a way that it is voluntarily gifts given to the wife before or after her marriage and there is no element of coercion. The Courts have clearly said that women will have absolute rights over their streedhan even if it is placed in the custody of her husband or in-laws. The case of Pratibha Rani vs. Suraj Kumar1 also discussed.
  • Right to residence: A wife has the absolute right to reside in a matrimonial household where his husband resides, irrespective of whether it is an ancestral house, a joint family home, a self-acquired home or a rental house.
  • Right to a committed relationship: A Hindu male is bound not to marry any other girl or have an affair with anyone else unless he is legally divorced. In case if the husband having a relationship with any other woman then he will be charged of adultery under section 497 of IPC. His wife has the right to file divorce on the ground of having an extra-marital relationship with any other woman.
  • Right to maintenance by husband: Under section 18 of the Hindu Adoption and Maintenance Act, 1956 a Hindu wife is entitled to claim maintenance from her husband in case if he is guilty of cruelty, desertion, polygamy or has a venereal disease, thereby enforcing her rights in divorce. Under section 25 of this act provides for permanent Alimony and Maintenance. This section allows any court which has jurisdiction under this Act may pass an order upon receiving an application from the aggrieved spouse directing the respondent to pay the applicant for her support and maintenance.
  • Right to live with dignity and self-respect: A wife has the right to live her life with dignity and to have the same lifestyle that of her husband and in-laws have. She also has right to live free from any mental or physical torture.
  • Right to child maintenance: Husband and wife must provide for their minor child. If the wife is incapable of earning, then the husband must provide her financial support.

1 AIR 1985 SC 628

  • Domestic Violence Act, 2005: This Act enacted by the parliament to protect the wife or women from domestic violence by her husband or relatives of her husband. This Act gives the right to the wife to file a petition against her husband or relatives of the husband in case of violation of her rights or if any harm is done to her whether physical, mental or emotional.