Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW
ACADEMIC SESSION:
2017 – 18

FINAL DRAFT
HUMAN RIGHTS
GENDER JUSTICE PERSPECTIVES WITH RESPECT
TO PROPERTY RIGHTS AGAINST WOMEN IN INDIA
SUBMITTED TO: SUBMITTED BY:

DR. APARNA SINGH ADITI VASTA

ASSISTANT PROFESSOR (LAW) ROLL NO. 7,SECTION A

Dr.RMLNLU, LUCKNOW B.A.LLB(H),SEMESTER VII

ACKNOWLEDGMENT
I express my gratitude and deep regards to my teacher for the subject Dr. Aparna
Singh for giving me such a challenging topic and also for her exemplary guidance,
monitoring and constant encouragement throughout the course of this thesis.

I also take this opportunity to express a deep sense of gratitude to my seniors in the
college for their cordial support, valuable information and guidance, which helped me
in completing this task through various stages.

I am obliged to the staff members of the Madhu Limaye Library, for the timely and
valuable information provided by them in their respective fields. I am grateful for
their cooperation during the period of my assignment.

Lastly, I thank almighty, my family and friends for their constant encouragement
without which this assignment would not have been possible.

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 GENDER JUSTICE PERSPECTIVES WITH RESPECT TO PROPERTY
RIGHTS AGAINST WOMEN IN INDIA

INDEX

INTRODUCTION……………………………………………………..………..4

INDIAN CONSTITUTION……………………………………………..………4

PRESENT POSITION OF PROPERTY RIGHTS OF HINDU WOMEN..……6

RIGHTS OF TRIBAL WOMEN…………………………………………..……7

RIGHTS OF MUSLIM WOMEN…………………………………………...….8

PROPERTY RIGHTS OF CHRISITAN WOMEN…………………………..…9

RESPONSE OF THE JUDICIARY……………………………………………..9

BARRIERS TO CHANGE IN STATUS………………………………………..9

CONCLUSION…………………………………………………………………10

BIBLIOGRAPHY………………………………………………………………11

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INTRODUCTION:
Gender inequalities throughout the world are among the most all-pervasive forms of
inequality. Gender equality concerns each and every member of the society and forms
the very basis of a just society and hence, the issue of ‘gender justice’ is of enormous
magnitude and of mammoth ramification engulfing in all-embracing and illimitable
canvas.
Undoubtedly, it is rightly described that human rights are sure and sound guarantee of
democracy. Every person should know that they have rights and that they are
protected by the State.
Human rights, broadly speaking, may be regarded as those fundamental and natural
rights which are essential for a decent life as human being. They are the rights which
are possessed by every human being irrespective of his or her nationality, race,
religion, sex, color, simply and only because he or she is a human being. Human
rights are sometimes characterized as fundamental rights or natural rights or basic
rights. One of those natural rights is the right to property. There is a huge amount of
discrimination faced by women in India when it comes to their right to property.
Gender-based discrimination reveals ugly face of the society. This issue is very old
and is global as well with varying degree. As human development occupies centre
stage in the global development debate, gender equality and gender equity are
emerging as major challenges. Gender discrimination, though amongst the most
subtle, is one of the most all-pervading forms of institutionalized deprivation.

The position of women in a given society can be understood properly through the
agency of the different customs, which the property rights have recognized and
protected. Succession rights to women have taken them to heights and new
consciousness. The word “succession” is a transmission by law or by the will of man
to one or more persons of the property and the transmissible rights and obligations of
a deceased person. The right of women to succeed to any property differs from one
religion to another depending on the personal laws. Religion plays an important role
in the devolution (the passing of property to another on the death of a person) of
property on women in the earlier days. But, with the advent of the modern
government and legislatures, most of the succession laws have been codified and
consolidated. There is therefore no single body of property rights of Indian women.
The property rights of the Indian woman get determined depending on which religion
and religious school she follows, if she is married or unmarried, which part of the
country she comes from, if she is a tribal or non-tribal and so on. Ironically, what
unifies them is the fact that cutting across all those divisions, the property rights of the
Indian women are immune from Constitutional protection; the various property rights
could be, as they indeed are in several ways, discriminatory and arbitrary,
notwithstanding the Constitutional guarantee of equality and fairness.

INDIAN CONSTITUTION

Indian Constitution has a substantially elaborate framework to ensure equality

amongst its citizens. It not only guarantees equality to all persons, under Article 14 as
a fundamental right, but also expands on this in the subsequent Articles, to make

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room for affirmative action and positive discrimination. Article 14 of the Constitution
of India states that: “The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.” In practice this
guarantee has been read to infer ‘substantial’ equality as opposed to ‘formal’ equality,
as judicially explained and elaborated upon in several judgments of the Supreme
Court of India as well as the Indian High Courts. The latter dictates that only equals
must be treated as equals and that unequal may not be treated as equals. This broad
paradigm itself permits the creation of affirmative action by way of special laws
creating rights and positive discrimination by way of reservations in favor of weaker
classes of society. This view is strengthened by Article 15 of the Constitution, which
goes on to specifically lay down prohibition of discrimination on any arbitrary
ground, including the ground of sex, as also the parameters of affirmative action and
positive discrimination:
“Article 15: Prohibition of discrimination on the grounds of religion, race, caste, sex,
place of birth or any of them: (1) The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No
citizen shall on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to: a)
access to shops, public restaurants, hotels and places of entertainment; or b) the use of
wells, tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of state funds or dedicated to the use of general public. (4) Nothing in this
Article shall prevent the state from making any special provision for women and
children. (5) Nothing in this Article or in clause (2) of Article 29 shall prevent the
state from making any special provision for advancement of any socially or
educationally backward classes of citizens or for Scheduled Castes and Scheduled
Tribes.” As can be seen, firstly, women are one of the identified sections that are
vulnerable to discrimination and hence expressly protected from any manifestation or
form of discrimination. Secondly, going a step further, women are also entitled to
special protection or special rights through legislations, if needed, towards making up
for the historical and social disadvantage suffered by them on the ground of sex alone.
The Indian courts have also taken an immensely expansive definition of fundamental
right to life under Article 21 of the Constitution as an umbrella provision and have
included within it right to everything which would make life meaningful and which
prevent it from making it a mere existence, including the right to food, clean air,
water, roads, health, and importantly the right to shelter/ housing1.

Additionally, though they are not justiciable and hence cannot be invoked to demand
any right thereunder, or to get them enforced in any court of law, the Directive
Principles of State Policy in Chapter IV of the Indian Constitution lend support to the
paradigm of equality, social justice and empowerment which runs through all the
principles. Since one of the purposes of the directive principles is to guide the
conscience of the state and they have been used to constructively interpret the scope
and ambit of fundamental rights, they also hit any discrimination or unfairness
towards women. However, as mentioned above, notwithstanding the repeated and
strong Constitutional guarantees of equality to women, the property rights of Indian

1 Corporation v. Nawab Khan Gulab Khan & Ors.: (1997) 11 SCC 121)

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women are far from gender-just even today, though many inequalities have been
ironed out in courts. Below are some of the highlights of the property rights of Indian
women, interspersed with some landmark judgments which have contributed to
making them less gender unjust.

PRESENT POSITION OF PROPERTY RIGHTS OF HINDU WOMEN:

Property rights of Hindu women vary depending on the status of the woman in the
family and her marital status: whether the woman is a daughter, married or unmarried
or deserted, wife or widow or mother. It also depends on the kind of property one is
looking at: whether the property is hereditary/ ancestral or self-acquired, land or
dwelling house or matrimonial property.
The Hindu Succession Act enacted in 1956 was the first law to provide a
comprehensive and uniform system of inheritance among Hindus and to address
gender inequalities in the area of inheritance – it was therefore a process of
codification as well as a reform at the same time. Prior to this; the Hindu Women’s
Rights to Property Act, 1937 was in operation and though this enactment was itself
radical as it conferred rights of succession to the Hindu widow for the first time, it
also gave rise to lacunae which were later filled by the Hindu Succession Act (HSA).
HSA was the first post-independence enactment of property rights among Hindus – it
applies to both the Mitakshara and the Dayabhaga systems.
The main scheme of the Act is:
1. The hitherto limited estate given to women was converted to absolute one.
2. Female heirs other than the widow were recognized while the widow’s position
was strengthened.
3. The principle of simultaneous succession of heirs of a certain class was introduced.
4. In the case of the Mitakshara Coparcenary, the principle of survivorship continues
to apply but if there is a female in the line, the principle of testamentary succession is
applied so as to not exclude her.
6. Even the unborn child, son or daughter, has a right if s/he was in the womb at the
time of death of the intestate, if born subsequently.
Under the old Hindu Law only the “streedhan” (properties gifted to her at the time of
marriage by both sides of the family and by relatives and friends) was the widow’s
absolute property and she was entitled to the other inherited properties only as a life-
estate with very limited powers of alienation, if at all. Even under the 1937 Act, the
concept of “limited estate” continued. Section 14 of the Hindu Succession Act
removed the disability of a female to acquire and hold property as an absolute owner,
and converted the right of a woman in any estate already held by her on the date of
the commencement of the Act as a limited owner, into an absolute owner. The
provision is retrospective in that it enlarged the limited estate into an absolute one
even if the property was inherited or held by the woman as a limited owner before the
Act came into force. The only exception, in the form of a proviso, is for the
acquisitions under the terms of a gift, will or other instrument or a decree, or order or
award which prescribe a restricted estate.

An important change has been brought about by Section 6 of the HSA by virtue of
which on the death of a member of a coparcenary, the property devolves upon his
mother, widow and daughter, along with his son, by testamentary or intestate
succession, as the case may be, and not by survivorship. This rule confers on the

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women an equal right with the male member of the coparcenary. However, when the
proviso to Section 6 applies, there is no disruption of joint family status – the proviso
creates a fiction so that persons who are to inherit are identified. While the Hindu
Succession Act may be said to have revolutionized the previously held concepts on
rules of inheritance, it has also gives its property rights to the daughter of a
coparcener in a Hindu joint family to be coparcener by birth in her own right in the
same manner as the son or to have right of claim by birth.
Another continuing area of discrimination is that Section 4(2) (tenancy of agricultural
holdings) of the HSA has been omitted after the 2005 amendment. Also Section 23
has been omitted as well. Now even daughters can ask for partition which was not the
case earlier.

RIGHTS OF TRIBAL WOMEN:

It is also pertinent to mention here that as far as property rights of the tribal women
are concerned, they continue to be ruled by even more archaic system of customary
law under which they totally lack rights of succession or partition. Infact the tribal
women do not even have any right in agricultural lands.
It was held in the case of Madhu Kishwar and Ors. Vs. State of Bihar and Ors. 2 that
the tribal women would succeed to the estate of their parent, brother, husband, as
heirs by intestate succession and inherit the property with equal share with male heir
with absolute rights as per the general principles of Hindu Succession Act, 2005, as
amended and interpreted by the Court and equally of the Indian Succession Act to
tribal Christian. In a substantially concurring but separately written judgment another
judge of the Bench supplemented another significant principle to strengthen the tribal
women’s right to property by reading the right to property into the tribal women’s
right to livelihood.

RIGHTS OF MUSLIM WOMEN:

Broad principles of inheritance in Muslim law: Till 1937 Muslims in India were
governed by customary law which were highly unjust. After the Shariat Act of 1937
Muslims in India came to be governed in their personal matters, including property
rights, by Muslim personal law as it “restored” personal law in preference to custom.
However this did not mean either “reform” or “codification” of Muslim law and till
date both these have been resisted by the patriarchal forced in the garb of religion.
Broadly the Islamic scheme 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 heirs (younger brothers over sons) and
failing them to uterine heirs and
(iii) bequests are limited to one-third of the estate, i.e., maximum one-third
share in the property can be willed away by the owner.
The main principles of Islamic inheritance law which mark an advance vis-à-vis the
pre-Islamic law of inheritance, which have significant bearing on the property rights
of women, are: (i) the husband or wife was made an heir (ii) females and cognates

2 (1996) 5 SCC 125)

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(blood relative on mother’s side) were made competent to inherit (iii) parents and
ascendants were given the right to inherit even when there were male descendants and
(iv) as a general rule, a female was given one half the share of a male. The newly
created heirs were mostly females; but where a female is equal to the customary heir
in proximity to the deceased, the Islamic law gives her half the share of a male. For
example, if a daughter co-exists with the son, or a sister with a brother, the female
gets one share and the male two shares. The doctrine of survivorship followed in
Hindu law is not known to Mohammedan law; the share of each Muslim heir is
definite and known before actual partition.

Property rights through marriage: The Supreme Court of India has laid down in
Kapore Chand v Kadar Unnissa3, that the mahr (dower) ranks as a debt and the widow
is entitled, along with the other creditors of her deceased husband, to have it satisfied
out of his estate. Her right, however, is the right of an unsecured creditor; she is not
entitled to a charge on the husband’s property unless there be an agreement. The
Supreme Court has laid down that the widow has no priority over other creditors, but
that mahr as debt has priority over the other heir’s claims. This right is known as the
widow’s right of retention.

PROPERTY RIGHTS OF CHRISTIAN WOMEN:

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 of kindred to him, the
whole of his property would belong to his widow. Where the intestate has left a
widow and any lineal descendants, one third of his property devolves to his widow
and the remaining two thirds go to his lineal descendants. If he has left no lineal
descendents but has left persons who are kindred to him, one half of his property
devolves to his widow and the remaining half goes to those who are of kindred to
him. Another anomaly is a peculiar feature that the widow of a pre-deceased son gets
no share, but the children whether born or in the womb at the time of the death would
be entitled to equal shares. Where there are no lineal descendants, after having
deducted the widow’s share, the remaining property devolves to the father of the
intestate in the first instance. Only in case the father of the intestate is dead but mother
and brothers and sisters are alive, they all would share equally. If the intestate’s father
has died, but his mother is living and there are no surviving brothers, sisters, nieces,
or nephews, then, the entire property would belong to the mother.

RESPONSE OF THE JUDICIARY:

The response of the judiciary has been ambivalent. On one hand, the Supreme Court
of India has in a number of cases held that personal laws of parties are not susceptible
to fundamental rights under the Constitution and therefore they cannot be challenged
on the ground that they are in violation of fundamental rights especially those
guaranteed under Articles 14, 15 and 21 of the Constitution of India. On the other

3 (1950) SCR 747

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hand, in a number of other cases the Supreme Court has tested personal laws on the
touchstone of fundamental rights and read down the laws or interpreted them so as to
make them consistent with fundamental rights.
Another heartening trend is that the Indian courts are increasingly relying on
international standards, derived from various international declarations and
conventions. Specifically CEDAW (Convention on Elimination of all Forms of
Discrimination against Women) has been referred to and relied upon by the Supreme
Court of India in some judgments. These lines of judgments give a firm basis for the
women of India to demand gender justice and equal rights on par with international
standards.

BARRIERS TO CHANGE IN STATUS:

1. Inadequate laws and system of enforcement- While there are a growing

number of contemporary laws, as framed by the modern State, which give
inheritance rights to daughters when they are recognized as individuals among
the communities, the process of marriage and the traditionally patrilineal
customs have remained largely unchanged. Thus, there remains a mismatch
between marriage practices and inheritance laws, with the strength and biases
of the marriage practice often overriding inheritance laws. This is also
evidenced in the process of dowry practices.
2. Lack of awareness of existing laws and insufficient understanding of the
legal redress option- Levels of education, oftentimes products of restrictions
on women’s interaction with institutions which are primarily composed of
men, create a mystique and illusion about legal actions. Additionally,
ideologies about the conduct that a woman displays, normally taking the form
of docility, can bring shame to the idea of challenging persisting gender
inequalities in law, policy and land rights.
3. Prevalence of traditional attitudes and practices- Gender ideologies, or
beliefs and stereotypes of the expected characteristics of a particular gender,
provide a barrier for women to gain property rights and enhance status. These
ideologies may take the form of assumptions of the role that a woman plays in
society, her needs or capabilities, which thus affect the way that an issue is
framed and implemented.

CONCLUSION:

Apart from the ongoing struggle for a uniform civil code in accordance with the
Constitutional framework, today the India women are fighting for rights in marital
property, denied uniformly to them across all religious boundaries. There is also a
significant movement in some of the hill states, towards community ownership of
land by women by creating group titles and promoting group production and
management of land and natural resources by landless women for joint cultivation or
related farm activity.
Though women’s lack of formal control over land and resources has long persisting
historical roots, economies and societies undergoing extensive change have created

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deep implications for ownership rights. increasing women's access to property rights
has numerous significant economic benefits for the overall community as well as
psychological and social benefits for the lives of women, themselves, especially in
agricultural societies. Economically, when women have greater access to land-
ownership in rural areas, which started being implemented by the government
following the 20th century mandates on property laws in order to ultimately promote
greater gender equality, women begin to independently cultivate their own land, form
women collectives to learn more about agricultural practices as well as profit-
generating skills and ultimately, have yielded more output from that given land than
the previous owners. Further, the psychological benefits from increasing women's
access to property rights is that this leads to a significant decrease in instances of
marital domestic violence.

BIBLIOGRAPHY:

1. https://www.womenslinkworldwide.org/en/files/1290/property-rights-of-
indian-women.pdf
2. http://egazette.nic.in/WriteReadData/1956/E-2173-1956-0038-99150.pdf
3. http://www.ncaer.org/news_details.php?nID=252
4. https://www.worldwidejournals.com/paripex/recent_issues_pdf/2015/Sept
ember/September_2015_1492176817__30.pdf
5. http://shodhganga.inflibnet.ac.in/bitstream/10603/31670/10/10_chapter%
203.pdf
6. https://thewire.in/gender/women-property-rights-womens-day
7. https://thewire.in/gender/women-property-rights-womens-day
8. http://docs.manupatra.in/newsline/articles/Upload/06EF3D18-696B-
4E5F-A61E-80646EC0E664.pdf

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