WOMEN’S RIGHT TO PROPERTY
- Law Mates
- Nov 2, 2020
- 10 min read
“Equality is not just the right thing to do. It’s smart economics. How can an economy achieve full potential if it ignores, sidelines, or fails to invest in half its population?”
― Robert Zoellick
INTRODUCTION:
What are property rights?
Directly in any type of property or cases that are legitimately and socially perceived and implemented by the outer legitimized authority. Property rights incorporate the legitimate rights to get, own, sell, move property, gather and keep rents, keep one's wages, make an agreement, and bring claims.
WOMEN'S PROPERTY RIGHTS IN INDIA:
Much like those of women of different nations, the property privileges of Indian women have advanced out of a proceeding with the battle between the norm and furthermore the reformist powers. Furthermore, practically like the property privileges of women of other countries, property privileges of Indian women are inconsistent and out of line: while they have come to an extended route ahead within the last century, Indian women keep on getting fewer rights in property than the men, each as far as quality and quantity.
What could likewise be somewhat extraordinary with respect to the property privileges of Indian ladies is that, other than a few other personal rights, the matter of property rights to the Indian women are isolated among themselves.
Home to different religions, India hasn't introduced an indistinguishable common code.
Accordingly, every profound network keeps on being represented by its personal laws in a few issues – property rights are one among them. Indeed, even among the different otherworldly gatherings, there are sub-gatherings and local traditions and standards with their few property rights. Hence Hindus, Sikhs, Buddhists, and Jains are represented by one code of property arranged exclusively as of late as the year 1956, though Christians are administered by another code and thus the Muslims have classified their property rights, neither the Shias nor the Sunnis. Likewise, the ladies of arranged religions and states keep on being represented for their property rights by the traditions and standards of their clans. To confuse it further, underneath the Indian Constitution, both the focal and furthermore state governments are capable to order laws on issues of progression and henceforth the states can, and a couple have sanctioned their varieties of property laws among each close to home law. There is in this manner no single group of property privileges of Indian ladies. The property privileges of the Indian women get decided on which religion school she follows in the event that she is hitched or separated, that part of the nation she originates from on the off chance that she could be a social gathering or non-ancestral, etc. Incidentally, what brings together them is that the unquestionable reality that cutting over each one of those divisions, the property privileges of the Indian women are invulnerable from Constitutional assurance; the different property rights might be, as they, in fact, are from various perspectives in which, unfair and unusual, ways the Constitutional assurance of equity and reasonableness. For by and gigantic, with a couple of special cases, the Indian courts have would not check the individual laws on the reference purpose of Constitution to strike down those that are unlawful and have left it to the information on the lawmaking body to choose an opportunity to outline the uniform common code according to the order of a Directive Principle in Article 44 of the Constitution.
INDIAN CONSTITUTION AND RIGHT TO EQUALITY AND WOMEN'S PROPERTY RIGHTS AND RELATED IMPORTANT JUDGEMENTS:
ARTICLE 14-RIGHT TO EQUALITY:
The Constitution of India classifies the crucial rights-the principal common liberties of its residents that are sketched out to some extent III of the Constitution. One such right is the privilege to balance that is secured under articles 14 to 18. Article 14 is the most crucial part. These arrangements with the overall standards of equity. All the things not lined under 15 to18 are secured under this. Article 14 of the constitution expresses that:
"The State will not deny to any individual uniformity under the watchful eye of the law or the equivalent assurance of the laws inside the region of India."
This implies that every individual, who lives inside the region of India, has an equivalent just under the watchful eye of the law. That equivalent will be dealt with similarly.
This article establishes two components, being:
Correspondence under the steady gaze of law and
Equivalent assurance of the laws.
Albeit both sound comparative, they don't mean the equivalent. "Law" inside the previous articulation is utilized in an extremely real sense – a philosophical sense, while "Laws" inside the last articulation, means explicit laws as a result.
Uniformity under the steady gaze of the law talks concerning equivalent coercion, everything being equal (rich or poor, high or low, official or non-official) to the standard rule that everyone must follow managed by the standard law courts and could be an antagonistic thought as suggests the nonappearance of any benefit for any individual and equivalent coercion, all things considered, to the standard law. Though, equivalent security of the laws could be a Positive idea as it infers uniformity of treatment in equivalent conditions both in benefits introduced and liabilities compulsory. In this way, all the people must be dealt with the same on sensible grouping. Among approaches, the law should be equivalent and similarly controlled. The assurance of equivalent security applies against considerable just as procedural laws
This view is fortified by Article 15 of the Constitution, which goes on to explicitly set down disallowance of segregation on any subjective ground, including the ground of sex, as likewise the boundaries of governmental policy regarding minorities in society and positive separation:
"Article 15: Prohibition of segregation on the grounds of religion, race, sex, a spot of the birth, or any of them:
The State will not victimize any resident on grounds just of religion, race, sex, a spot of the birth, or any of them.
No resident will on grounds just of religion, race, sex, the spot of the birth, or any of them, be dependent upon any inability, obligation, limitation, or condition concerning:
admittance to shops, public cafés, inns, and spots of diversion; or
the utilization of wells, tanks, washing ghats, streets, and spots of public retreat kept up completely or mostly out of state assets or committed to the utilization of the overall population.
Nothing in this Article will keep the state from making any extraordinary arrangement for women and kids.
Nothing in this article or condition (2) of Article 29 will keep the state from making any extraordinary arrangement for the headway of any socially or instructively in reverse classes of residents or Scheduled Castes and Scheduled Tribes."
As can be seen, initially, ladies are one of the distinguished segments that are helpless against separation and henceforth explicitly shielded from any sign or type of segregation. Furthermore, going above and beyond, ladies are additionally qualified for unique security or extraordinary rights through enactment, if necessary, towards compensating for the verifiable and social drawback endured by them on the ground of sex alone.
JUDGEMENTS ON RIGHT TO EQUALITY:
.P Royappa v. State of Tamil Nadu & Another[1] - It was held that Article 14 is one of the pillars of the Indian Constitution and hence cannot be bound by a narrow and inflexible interpretation. Article 14 should thus be given the widest interpretation possible, which also includes reasonableness and arbitrariness of visions by the legislation.
Maneka Gandhi v. Union of India[2] -the Supreme Court ruled out the room for arbitrariness. 'Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.' Rule of law which permeates the entire fabric of the Indian Constitution excludes arbitrariness. Wherever we find arbitrariness or unreasonableness there is the denial of rule of law.
The Indian courts have also taken an immensely expansive definition of the 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/housing.[3]
JUDGEMENTS RELATED TO WOMEN’S PROPERTY RIGHTS:
Vineeta Sharma v Rakesh Sharma (2020)[4] - the court held that daughters would have equal coparcenary rights in Hindu Undivided Family property (HUF) by virtue of their birth and could not be excluded from inheritance, irrespective of whether they were born before the 2005 amendment to the Hindu Succession Act, 1956.
Prakash v Phulavati (2016)[5] - The Supreme Court held that a daughter could be eligible to be a co-sharer only if the daughter and the father were alive as of September 9, 2005 (the date of the amendment). The Supreme Court, by virtue of the Vineeta Sharma judgment, extended the benefit of the 2005 amendment and legitimized the position of women as an integral part of their father's family
THE PROPERTY RIGHTS IN RESPECT TO DIFFERENT RELIGIONS:
PROPERTY RIGHTS OF HINDU WOMEN:
PRESENT- The latest decision of the Supreme Court on the right of Hindu daughters to ancestral property corrects an apparent anomaly within the interpretation of an important 2005 amendment to the Hindu Succession Act, 1956. The verdict settles the question of whether or not the coparcenary right of daughters comes into effect on condition that the father through whom they claim that right was alive on the day the amendment came into force. The apex court has currently categorically ruled that the daughters’ right flows from their birth and not by the other factor like the existence of their fathers. In other words, it has rejected the common misinterpretation that solely daughters of coparceners who were alive thereon day might get an equal share in the property. The court has justifiedly recognized that the amendment bestowed equal status as a coparcener on daughters in Hindu families governed by Mitakshara law, and this right accrued by birth. The amendment came into effect from September 9, 2005, but with a provision that partitions or testamentary disposition that had taken place before Gregorian calendar month December 2004 — the date on which the amendment Bill was introduced in the Rajya Sabha — will remain valid and unaffected by the change. This led to the interpretation that the daughters’ coparcenary rights, being prospective, wouldn't come into effect unless both the coparcener father and his daughter were alive on 9 nine, 2005. This position was crystallized in a very 2015 judgment of the Supreme Court in Prakash and others vs. Phulavati[6]. This judgment now stands overruled.
PROPERTY RIGHTS OF MUSLIM WOMEN :
There is an arrangement against destitution of the members in the Islamic law in that it is obvious given that a Muslim can't pass on more than 33% of his property. In any case, on the off chance that he enrolls his current marriage under the arrangements of the Special Marriage Act, 1954 he has all the powers of a testator under the Indian Succession Act, 1925.
Indian Muslims extensively have a place with two ways of thinking in Islamic Law: the Sunnite and the Shiite.
Wide standards of legacy in Muslim law: Till 1937 Muslims in India were administered by standard law which was profoundly treacherous. After the Shariat Act of 1937 Muslims in India came to be represented in their own issues, including property rights, by Muslim individual law as it "reestablished" individual law in inclination to custom. Notwithstanding, this didn't mean either "change" or "codification" of Muslim law and to date both these have been opposed by the male-centric powers in the attire of religion.
The teaching of survivorship continued in Hindu law isn't known to Mohammedan law; the portion of every Muslim beneficiary is unmistakable and known before real parcel. Privileges of legacy emerge just on the demise of someone in particular.
The judgment identified with Muslim women's property rights:
Kapore Chand v Kadar Unnissa[7]
PROPERTY RIGHTS OF PARSI WOMEN :
When it comes to Parsis their property rights are quite gendered just.
A Parsi widow and all her children irrespective of gender and marital status get an equal share in the property of the intestate while each parent both mother and father, get half the share of each child.
THE RESPONSE OF THE JUDICIARY AND CONCLUSION:
The proclamation on the Hindu Succession Act on August 11 is the emblematic blow for women's equality. In a judgment of the Supreme Court (SC) that maintains gender equality under the law has extended the privileges of Hindu ladies to their father's property under the Hindu Succession (Amendment) Act, 2005, regardless of whether they were conceived before the change or the father was not alive at the hour of the revision.
SC eliminates male supremacy over Hindu genealogical property. It is a significant push for women who need monetary assets and is often marginalized by male individuals from the family. The way that law — not simply a will — chooses women's property rights is critical. In any case, the test of guaranteeing that ladies are engaged by this legitimate arrangement stays; numerous reformist lawful rights fall as women don't realize that they exist. This must be redressed. The SC's arrangement gives women a level-battleground in lawful rights over property and is a distinct advantage in the bigger canvas of gender orientation rights.
As the significance of women's privileges in the general population and private circle keeps on developing, it is basic that the law keeps on advancing, obliging their goals, and wants. Nonetheless, the difficulties are many: social acknowledgment of women's privileges in property drives them. In a nation where women keep on being property themselves, the street ahead vows to belong and uneven.
Author – MRIDULA VATS
BA LLB 1st SEMESTER
AMITY UNIVERSITY GURUGRAM
REFERENCES:
[1]E.P Royappa v. State of Tamil Nadu and Anr(AIR 1974 SC 555)
[2]Gandhi v. Union of India(1978 AIR 597, 1978 SCR (2) 621))
[3] For instance in Shantistar Builders v. Narayan Khimalal Tortame: (1990) 1 SCC 520), P.G. Gupta v. the State of Gujarat ((1995) Supp 2 SCC 182), Chameli Singh v. State of U.P.: (1996) 2 SCC 549, Nawab Khan's case (Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan & Ors.: (1997) 11 SCC 121)), right to education ( Bandhua Mukti Morcha v. Union of India (1984 3 SCC 161), Mohini Jain v. State of Karnataka (1992) 3 SCC 666) and Unnikrishnan J.P. & Ors. v. State of Andhra Pradesh & Ors. Union of India (1993) 1 SCC 645), right to health (C.E.S.C. Ltd. v. Subhash Chandra Bose (1992) 1 SCC 441, Consumer Education & Research Centre & Ors. v. Union of India & Ors.: (1995) 3 SCC 42), right to food (People's Union for Civil Liberties v. Union of India & Ors.: Writ Petition No. 196 of 2001), right to clean water (Attakoya Thangal Vs. Union of India [1990(1) KLT 580]
[4] CIVIL APPEAL NO.
DIARY NO.32601 OF 2018
SPECIAL LEAVE PETITION (C) NOS.17661767 OF 2020
[5] (2016) 2 SCC 36
[6] (2016) 2 SCC 36
[7] (1950) SCR 747
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