Property rights among Hindu, Muslim and Christian

Women’s rights to property in India are limited compared to men. The denial and violations of
women’s property rights widens the economic disparity between men and women. Women’s
property rights are affected by complex web of statutory laws, personal laws, social norms and
customs.

The applicability of personal laws depends on a persons’ religious affiliation. For instance,
Hindus, Sikhs, Buddhists and Jains are governed by one code i.e. The Hindu Marriage Act, 1955
and The Hindu Succession Act, 1956, whereas Muslims have not codified their laws. Muslim
women are governed by Muslim Personal Law (Shariat) Application Act, 1937 and Muslim
Women’s (Protection of Rights on Divorce) Act, 1986. Tribal women’s right to property are
governed by customs and norms of the tribe they belong. In a word there is no uniform body of
law governing Indian women’s property rights. Her right to property depends on her religion, her
marital status, part of the country she belongs, her tribal association and so on. Not only these it
also depends on her status in her family: whether the woman is a daughter, mother, wife,
married, unmarried, deserted or widow. Her property rights also depend on the kind of property
at issue, i.e. whether the property is hereditary/ancestral or self-acquired, land or dwelling or
matrimonial property. To complicate it further our constitution authorized both the central and
the state governments to enact laws on matters of succession and hence the state can, and some
have, enacted their own variations of property laws within each personal laws.

Indian Constitution: Framework of Equality

Indian constitution has a substantially elaborated framework to ensure equality amongst its
citizens. It not only guarantees equality to all its persons under Article 14 as a fundamental right,
but also expended this Article to make room for affirmative action and positive discrimination.
Under Article 15 the constitution prohibited discrimination on the ground of religion, race, caste,
sex, place of birth or any of them. Article 21 of the Constitution as an umbrella provided and
included within it right to everything which would make life meaningful, including the right to
food, clean air, roads, health, and importantly the right to shelter/housing.[1]

Further the Directive Principle of the State Policy under Part IV of the Indian Constitution lends
support to the paradigm of equality, social justice and empowerment. One of the purposes of the
directive principles is to guide the conscience of the state. They have been used to constructively
interpret the scope and ambit of the fundamental rights, which also hit any discrimination or
unfairness towards women.

Recommendations of Women Commissions on Status of Women in India

In 1975 a committee on the status of women was constituted by the Government of India, to
evaluate the legal provisions in regards to women, so that a woman is not left completely
destitute. Some important recommendations made by the committee were:

1. Legislative measures should be taken to bring Christian women of Kerala under the Indian
Succession Act.

2. The Indian Succession Act should be extended to Goa and Pondicherry to undo the
relegation of widows to fourth position in matters of succession and to undo the inferior position
to which Christian women are relegated by not being considered as full owners of property.

3. In regards to succession to property among Hindus, the right by birth should be abolished
and the Mitakshara coparcenary should be converted into Dayabhaga (Mitakshara coparcenary
perpetuates inequality between sons and daughters as only males can be coparceners, and
inheritance is only through the male line).

4. The discrimination between married and unmarried daughters regarding right of inheritance
of dwelling houses caused under Section 23 of the Hindu Succession Act should be removed.

5. There is need for legislation in Muslim Law to give equal share of property to the widow
and daughter along with sons as done in Turkey.

6. In Matrimonial property, legal recognition should be given to the economic value of the
contribution made by the wife through household work for purposes of determining ownership of
matrimonial property, instead of continuing the archaic test of actual financial contribution; on
divorce or separation, the wife should be entitled to at least 1/3rd of the assets acquired at the
time and during the continuation of marriage.

The National Commission for Women had also recommended certain amendments in laws
related to women and property.

1. Under Indian Succession Act, 1925 it suggested that Sections 15 and 16 should be amended,
removing mandatory linkage of wife's domicile with that of the husband. Further, it
recommended that appointment of testamentary guardian may be the right of both the parents
acting concurrently.

2. Widows should be granted letter of administration to deal with the estate of the deceased
husband unless excluded by the Court for sufficient reasons.
3. In Hindu Succession Act, 1956, it suggested equal distribution of not only separate or self
acquired properties of the diseased male, but also of undivided interests in coparcenary property.
It further suggested daughter to be a coparcenary by birth in the same manner as a son.

4. The right of any heir to claim partition of a dwelling house to arise only after settlement of
widowed mother's rights.

A remarkable dent in this situation was made by the Hindu Succession [Andhra Pradesh]
Amendment Act, 1985. This law stated that, in any circumstances, the rights of the daughter are
equal to that of the son. This new law found the Mitakshara system in violation of the
fundamental right of equality bestowed upon women in Indian Constitution. Following Andhra
Pradesh, Tamil Nadu, Maharashtra and Kerala also subsequently amended their laws by
including women as members of the coparcenaries.

HINDU WOMEN’S RIGHT TO PROPERTY

The Property right of a Hindu woman largly depends on her status in the family i.e. whether she
is a daughter, married or unmarried or deserted, wife or widow or mother. It also depends on the
type of property in issue i.e. whether the property is self-acquired or ancestral/hereditary.

The Hindu Succession Act, 1956:

Prior to Hindu Succession Act, 1956 ‘Shastric’ and ‘Customery’ law that varied from region to
region use to govern the Hindus. The main scheme of the Hindu Succession Act is:

1. The hitherto limited estate given to women was converted to absolute one.

2. The principle of simultaneous succession of heirs of a certain class was introduced.

3. In the case of the Mitakshara coparcenary, the principle of testamentary[2] succession was
applied so as not to exclude women.

4. Remarriage, conversion and unchastity were no longer held grounds for disability to inherit.

5. Even the unborn child, son or daughter, has right if s/he was in the womb at the time of
death of the intestate[3].
Under old Hindu Law woman do not have share in ancestral property by birth. They were
entitled to get the expenses of their food, shelter, clothing, education and marriage out of the
property i.e. she was entitled to the properties only as a life-estate but this disability has been
removed by Section 14 of HSA[4]. Now a woman can acquire and hold property as an absolute
owner. Now the female members have a full right over the property. They can sell it, gift it, Will
it away to whomsoever they wish. Now it is the right of the mother, grandmother, unmarried
sister, widowed sister, widowed daughter-in-law and deserted sister to stay in the family house as
long as it is in existence.

The next important change has been bought by Section 6 of HSA by virtue of which on the death
of a member of a coparcenary, the property devolves upon his mother, widow and daughter,
alongwith his son, by testamentary or intestate succession, as the case may be, and not by
survivorship.

Section 23 “when a coparcenary property includes a dwelling house, division shall not arise until
the male coparcenaries choose to divide their respective shares” was removed by the amendment
of HSA of 2005 resulted in removal of the disabilities of the women. This is a great step of the
government so far for improving the social and economical status of the women.

The amendment of the Hindu Succession Act of 1956 (September 2005), have improved the
property right of Hindu women. The Act now covers agricultural holdings whereby a daughter is
recognized as heir by birth in the same manner as her brother. The sections that prevented a
female residing in the family house from asking for partition (dividing up) of the house and did
not allow widows remarrying to inherit the property of their deceased husband have been
repealed. However, under the Hindu Succession Act, daughter still have limited rights regarding
ancestral property. Additionally a Will can deny a daughter all rights to parental property. This is
because Hindu parents’ right to hand self-earned property is unrestricted and therefore they often
do leave such property on to their sons.

· A male Hindu can make a Will of his share in ancestral property. If he doesn’t make a
Will of his share, then, upon his death, his share of the property will be divided amongst his
Class I heirs. Each shall be granted one share of the deceased property. His Class I heirs will be:

Sons
Daughters
Widow
Mother
Children of pre-deceased son
Children of pre-deceased daughter
Widowed daughter in-law
Children of pre-deceased grandson

· In case there is no person, specified as Class I heirs, then property will devolve upon the
Class II heirs. His Class II heirs will be:

1. Father
2. Son's daughter's son
3. Son's daughter's daughter
4. Brother
5. Sister
6. Daughter's son's son,
7. Daughter's son's daughter,
8. Daughter's daughter's son,
9. Daughter's daughter's daughter.
10. Brother's son,
11. Sister's son,
12. Brother's daughter,
13. Sister's daughter.
14. Father's father; father's mother.
15. Father's widow; brother's widow.
16. Father's brother; father's sister.
17. Mother's father; mother's mother
18. Mother's brother; mother's sister.

· If a Hindu woman dies without making a Will, her property will divided among her Class I
heirs[5]. Her Class I heirs are:

1. Her sons and daughters, including grandchildren in case her children are deceased and the
husband. If there is a child in the womb of the female when she passes and the child lives, the
child is eligible to inheritate just as any other son or daughter.
2. In absence of the above class of heirs, the property would devolve upon the heirs of her
husband.
3. In absence of the heirs of her husband, property will devolve upon her mother and father.
4. Then to the heirs of her father.
5. And lastly to the heirs of her mother.

However, if any property was inherited by a female Hindu from her parents the same shall
devolve upon the heirs of her father in the absence of sons or daughters (including the children of
any pre-deceased son or daughter). Similarly, in the absence of sons or daughters (including the
children of any pre-deceased son or daughter), if the property was inherited by a female Hindu
from her husband or father-in-law, it shall devolve upon the heirs of her husband.

MUSLIM WOMEN’S PROPERTY RIGHTS

Indian Muslims are broadly divided into two schools of thoughts: the Sunnite and Shiite. The
Sunnite School is the predominant school in India. This is categories as Hanafis, Shafis, Malikis
and Hanballs. The vast majority of Muslims in India, Pakistan, Afghanistan, and Turkey are
Hanafis.

· Now the question is are there any difference between Sunni and Shia law of inheritance?
 Sunni rules only count those relatives as heirs whose relation to the deceased person is
through a male like son’s daughter, son’s son and father’s mother.
 Shia includes even those persons as heirs who are related to the deceased through a
female Eg. Daughter’s son, daughter’s daughter.

Succession & Inheritance:

The Islamic design of inheritance discloses three features, which are markedly different from the
Hindu law of inheritance: (i) the Koran gives specific shares to certain individuals (ii) the residue
goes to the Agnatic[6] heirs and failing them to Uterine[7] heirs and (iii) bequests are limited to
1/3rd of the estate, i.e., maximum 1/3rd share in the property can be Willed away by the owner.

The main principle of Islamic inheritance law which marks an advance vis-à-vis the pre-islamic
law of inheritance, which has significant bearing on the property rights of women, are: (i) the
husband or wife was made an heir (ii) females and Cognates[8] were made competent to inherit
(iii) parents and ascendants were given the right to inherit even when there were male
descendents (iv) as a general rule, a female was given ½ of the share of the male. For example, if
a daughter co-exists with the son, or a sister with brother, the female gets one share and the male
two shares and (V) nearer heir excludes the remoter one.

The Hanafi jurists divided heirs into seven categories; three principle and four subsidiaries. The
3 principal heirs are Koranic heirs, Agnatic heirs and Uterine heirs. The 4 subsidiaries are
successor by contract, the acknowledge relative, the sole legatee and the state by escheat.

Property division:

 Widow: Share in her husband’s property

  Will get 1/8th share (when there are children)
 Will get 1/4th share (when there are no children)
· Share of two/more widows
 Together will get 1/8th share (when there are children)
 Together will get 1/4th share (when there are no children)
· Daughter: Share in father’s property
 Share of ½ (when has no brother)
 ½ of whatever shares the brother gets (when there is brother)
· Mother: Share in son’s property
 Will get 1/3rd share of her son’s property (when there are no other children)
 Will get 1/6th share of her son’s property (when there are children)
· Grand mother: Share in grandson’s property
 Maternal grandmother will get 1/6th share (only if there is no mother or paternal
grandmother)
 Paternal grandmother gets a share of total property (only if there is no mother or
grandfather)

Dower or Maher:

A sum of money or any property which the wife is entitled to get from the husband on marriage
is known as Dower. It can be fixed before or at the time of marriage. There are two types of
Maher; Prompt: it is the amount given to the wife immediately on solemnization of marriage;
Deferred: amount given to the wife when her marriage has ended either by death of her husband
or by divorce. The Supreme Court of India has laid down in Kapore Chand V. Kadar Unnissa[9]
that maher ranks as a debt and the widow is entitled, along with other creditors of her deceased
husband, to have it satisfied out of his estate. The Supreme Court has laid down that the widow
has priority over other creditors, but maher as debt has priority over the other heir’s claims. This
right is known as the widow’s right of retention.

Will or Wasiyat[10]:

The bequest of property (or money) after one’s death to a particular person is called Will. How
much of his/her property can a Muslim bequeath? A Muslim cannot bequeath more than 1/3rd of
his total property but if a woman has no blood relations & her husband would be her only heir,
then she can Will 2/3rd of her property in his favor. This amount is calculated after the funeral
costs and debts have been paid. However if the marriage is registered under the provisions of the
Special Marriage Act, 1954, the Indian Succession Act, 1925 will be applicable and if the Will
relates to immovable property situate within the State of West Bengal, and that of Madras and
Mumbai, the Indian Succession Act, 1925 shall be applicable.
CHRISTIAN WOMEN’S PROPERTY RIGHTS

The Christian Succession Laws were codified by the Indian Succession Act of 1865, and later by
the Indian Succession Act, 1925. Section 31 to 49 of the Act specifically deals with the Christian
Law of Inheritance. The Indian Christian widow’s right is not an exclusive right and gets
curtailed as the other heirs step in. Only if the intestate has left none who are kinder to him, the
whole property would devolve upon his widow.

In case the deceased has left a widow and any lineal descendent then 1/3rd of the property goes
to the widow and the remaining 2/3rd will be equally divided among the descendents. Where
there are no lineal descendent but the deceased is left with a person who are kindred to him, ½ of
the property devolves to his widow and the remaining ½ goes to the kindred. Regarding the
shares of predeceased, both the boys and girls are entitled to equal share. Husband surviving the
wife have the same rights in respects of her property as a widow have in respects of her husband
property.

Where there is no lineal descendent, after having deducted the widow’s share, the remaining
property devolves upon the father of the intestate in the first instance. In case the father of the
intestate is dead but mother, brother and sister are alive, they all would share the property
equally. If intestate father has died, but his mother is living and there is no surviving brother,
sister, nieces, or nephews, then, the entire property would belong to the mother. A peculiar
feature of Christian law of inheritance is the widow of a pre-deceased son gets no share in her
father-in-law’s property, but the children, born or in womb at the time of death of the intestate
will be entitled to have equal share in their grandfather’s property.