Who Has the Right Over A Woman’s Property?

Who Has the Right Over Woman's Property

Rights of a woman to a property as well as rights of others in her property vary a lot and are influenced by various factors like culture, religion, the social status of the woman and the development level of the society to which she belongs.

A woman may acquire property as:

  • Ancestral property
  • Self-acquired
  • Inherited
  • Received as gift/will

In India, the property rights of women are governed by law enacted by the legislature and personal laws.

A. In the case of Hindu women (Jain, Sikh and Buddhists are included)

The property of a woman devolves as per the Hindu Succession Act, 1956. The Act deals with intestate succession and not wills.

Hindu woman is an absolute owner of the property acquired by her through inheritance, partition, gift, will, in lieu of maintenance or purchased by her. The ownership gets limited in case the property transfer is subject to some restriction.

Sec 15 of the Act, 1956 provides the list of heirs of Hindu Woman’s property if she dies intestate and section 16 prescribes the order of preference:

  • Own children, children of predeceased children, husband – all share equally
  • Heirs of the husband (only when heirs in point 1 are absent)
  • Parents of Hindu woman (only when heirs in point 1 and 2 are absent)

Two exceptions to this rule are

  • If property by a Hindu woman is inherited from her father – in the absence of her children or predeceased children’s children, it goes to the heir of her father and not to the husband.
  • If the property is inherited from her husband or father in law – in the absence of her children or predeceased children’s children, it goes to heirs of the husband.

In case of self-acquired property, it is always advisable to make a will in time so that the property is bequeathed to beneficiaries one desires. As per the scheme of the Act, the self-acquired property of a Hindu Woman would go to heirs of the pre-deceased husband in case she dies intestate and has no issues.

After the amendment of 2005 in the 1956 Act, daughters are also coparceners, and they inherit the share in the ancestral property equally as a son and subject to same rights and liabilities as a coparcener. If she dies intestate, her interest devolves as per 1956 Act. She also has a right to make a will of her share.

Read More: Property rights of daughters Under Hindu Law in India

B.    Muslim woman

Under Muslim Law, there is no distinction between self-acquired or ancestral property for inheritance purposes. Inheritance opens only on the death of a person. Before a person dies, no legal heir has any right in the property. Legal heirs in Muslim law are divided into two categories

  • Sharers
  • Residuary

Sharers get their share first and residuary get what is left.

If A Muslim woman inherited property from any relation i.e. husband, son, father, mother, she becomes the absolute owner of her share and can dispose it. A Muslim woman in inheritance 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 to her property, she can give two-third of property by will.

A child in the womb of his mother is entitled to inherit if born alive.

C.    For others (Christian, Parsi and Jews)

For women of faiths other than Hindus, Buddhists, Sikhs, Jains and Muslims, succession whether Testamentary or non-testamentary, is governed by India Succession Act, 1925. Blood relatives of woman inherit even in the presence of husband and husband’s relatives. Inheritance laws under this Act are generally gender just.

Married Woman’s Share In Father’s Property

Married Woman’s Share In Father’s Property

Marriage is a sacramental union in Hindu Law.  But most of the rules and guidelines in this union are laid down for married women only.

With the passage of time, married women are trying to balance this union with both husband and wives enjoying equality in marriage. Married women are becoming aware of their rights as wives, mothers and married daughters.

Married women’s rights include:

  • right of inheritance in parent’s property
  • the right of maintenance for herself and her children
  • right against domestic violence
  • right to residence
  • right against polygamy

The list is not exhaustive and can be altered with changing times and social conditions.

Undoubtedly, the gender equality comes more with equal financial rights than anything else. The study of laws related to married women’s right in the property of her parents and her husband becomes significant.

Hindu Succession Act, 1956

  • Hindu Succession Act, 1956 – Hindu Succession Act contains provisions for intestate (the property for which there is no will) succession among heirs and applies to all who are Hindus under the provisions of Act.
  • The Act recognizes the concept of HUF (Hindu Undivided Family), which is a group of lineal descendants of a common ancestor. First four generations (only male members of HUF) are called coparceners and these coparceners acquire an interest in the coparcenary property by birth.
  • Coparcenary property is a property which has passed undivided from a common ancestor to four generations. Both ancestral and self-acquired property (which is pooled in joint property) can be coparcenary property.
  • The wives and daughters of coparceners also have a share in the undivided property but not the birthright in the undivided joint property. They are members of HUF but not coparceners.

Married Women’s Rights (Right of a Married daughter in her father’s property) under Hindu Succession Act, 2005

Once the daughter is married, she ceases to be part of HUF and loses any right in the father’s property. But now there has been an Amendment in the Act in 2005, and it has brought sea changes in the position of daughter:

  • The daughter shall also be a coparcener by birth, e. she inherits equally as other coparceners in the undivided joint family property. Earlier the daughter was only a member of HUF and not a coparcener. It means she was not entitled to seek partition. Now she is a coparcener and has same rights and liabilities as a son. (Only daughters can be admitted in coparcenary after amendment. Wives, mother and widows are still not part of coparcenary)
  • Daughter is now on equal footing with a son as both have a birthright in coparcenary property
  • Daughter can ask for partition, and she has an equal share in the property
  • The daughter living or dead on the date of Amendment (9th September 2005) has share in her father’s property – thus her children can claim if she is dead.
  • In February 2018, in a judgment, it has been made clear by Supreme Court of India that the benefits of the amendment will be available to all women whether born before or after the date of the amendment. The marital status of the daughter also will not make any difference. Thus women can file suit for the partition to claim their share in father’s property.

Now women enjoy rights in the property of their father by birth. Marital status makes no difference. In the case of the self-acquired property of the father, both sons and daughters enjoy equal rights. Thus married woman’s right in their father’s property is similar to that of a son.

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.

Indian Women’s Right to Property – Changing status & acceptance in Society

Indian Women's Right to Property

A strong bias against women in matters related to assets/asset distribution is something we are all familiar with. Women have particularly faced issues about the rules that govern the succession/inheritance of property amongst the members of a family.

Indian history is proof that men have exclusively benefitted from these property laws. The women were treated as weak and helpless, characterised by depending on the support from men.

With the passage of time, the Law Commission, therefore, recognised the need for change after realising that the property rights are vital for the development and the freedom of women.

In its 174th Report, the Law Commission finally recommended some amendments in the Property Laws. These modifications were implemented in The Hindu Succession (Amendment) Act, 2005 along with some other more beneficial adjustments.

The details of the property that a woman can now attain after the changes are:

  • ownership acquired by inheritance, adverse possession, or from other sources
  • assets purchased with savings of an income of ‘Stridhana’
  • bequests and gifts from known people or strangers
  • assets obtained on partition or by compromise

The Hindu Succession (Amendment) Act, 2005 replaced the Hindu Succession Act, 1956 giving a daughter the right to be a coparcener. It allowed the daughter to become a coparcener by birth in the same manner as the sons are. It also enabled her to have equal powers in the property as any son would have.

The reforms have ensured that the daughter is also allotted the same share as a son. The ownership of the pre-deceased son or daughter can now be given to the surviving child, whether male or female. The Act has been amended to allow the will executor the right to disposition any property competent of being disposed of by a male and a female as per the terms of the Indian Succession Act of 1925 or any other law applicable to the Hindus.

For all issues related to property distribution for women, keep watching this space as we follow it all up in subsequent newsletters.