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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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.