An Indian Civilizational Perspective

Women's rights and Activism of Indian Judiciary

Indian Supreme Court is very pro women, which is excellent. In the last so many centuries, the Indian societal customs have taken away from women more than they have given her so this quiet but a definite movement for empowering the woman is very positive. These decisions which become precedents and defacto law have been accumulating over many years.

The HIndu Succession Act of 1956 was the first time that by law in modern times, a woman was given the right to inherit property. Before that for the absolute right to be inherited to a lady, the will should have mentioned it in clear and unambiguous terms. After the HSA, 1956 however, a daughter and wife was treated the same way as the male heirs.

A spate of judgments were administered by Supreme Court thereafter where the injustice that was prevalent before the HSA 1956 was reversed by saying that any will that did not explicitly give absolute rights to a lady but recognized a “relationship” with the owner that could inherit property, then property rights – however restricted – to such a relationship will blossom as absolute right automatically. Which means that if a wife was not explicitly given absolute rights in the will but rights to live and function in that property (or have any vestige of right to property) then automatically she gets absolute rights to that property.

Absolute right to a property means the right of an owner with ability to sell, rent, and/or dispose of the property.

I have gone through a law suit within my family where a will which unambiguously took away absolute rights from a wife was also in danger of being interpreted in the same vein – despite the fact that the will of the owner was made and executed in 1975 (almost two decades AFTER HSA, 1956). Such is the level of activism of Supreme Court in this area!

Now, comes another movement for further strengthening and empowering a woman by Law Commission. It has recommended that self-acquired property of a married Hindu woman without an heir would simultaneously pass on to her parents as well as to her husband’s family.

In case the parents of a woman are no more, a part of her property would go to the heirs of her father. It would involve amendment in Section 15 of the HSA, 1956.

This amendment tries to differentiate clearly between inherited and self acquired property of a woman and creates a different set of inheritance pattern, in case of a woman, between the two.

Hitherto the law was silent on this distinction. The inheritance from the her parents would devolve to her father’s heirs in case of her death without heirs.. and the inheritance from her husband’s side would devolve to the heirs of husband. What about the self-acquired property? Well, it followed the pattern of property inherited from her husband’s side and used to devolve to her husband’s heirs.

Now, that has been changed.

Another change that Law Commission wants to make is that when amendments are made entitling women to inherit property from her parental side as well as her husband’s side, it would be justified if equal rights are given to her parental heirs along with her husband’s heirs, to her property.

Indian Judiciary is very progressive in this sense and should be applauded in the way it is shaping the future laws for women’s right through silent but determined activism.

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4 Comments
  1. harsh says

    1. LAw commission can only recomend and it’s role,responsibility and power are vastly diffrerent.
    Hindu succcession law is very complex, expecially till we had the recent ammendement in the succession laws. There is a concept called coprcener, which mean an equal partner in property. The day a male child is conceived in a Hindu family he becomes an equal share holder with his father in the ancestral property. The ancestral property which mittakshra, the school of law most widely held that even father can not dispose ancestral property without consent of his son, as he was an equal share holder. Female had an equal right only in fathers prporety. for example, if the father had ancestral property of 40 acres and he had 2 sons and a daughter. Then property will be dicvided in four parts. Two for sons and one for father and one for mother and each will get 10acres. Women will have an equal share in the father’s property meaning the 10 acre share of father will be divided into 4 parts, 2 for sons, 1 foe wife and i for daughter. Hence, each will get 2.5 acres. Hence as sons end up with 10+2.5 = 12.5 acres of land the girl child gets only 2.5 acre. However, the recent ammendment has changed it and now women are also entitles as an equal partner. hence, 40 acre pie will be divided into 5 parts 8 acres going to each. As women are getting significant property, increased responsibilty is also coming their way. this is basically a legisaltive change.
    however, the SC has been very pro poor . Judges like A.S. Anand and many of his fellow judges have given significant judgments protecting the right of women. However, the major challenge is now misuse of many of them like IPC section 498. As the cours are very strict to give bails in these cases, they are abused every now and then to intimadate the spouse and his family. Perheps a legislation is need of hour there also.

  2. harsh says

    1. LAw commission can only recomend and it’s role,responsibility and power are vastly diffrerent.
    Hindu succcession law is very complex, expecially till we had the recent ammendement in the succession laws. There is a concept called coprcener, which mean an equal partner in property. The day a male child is conceived in a Hindu family he becomes an equal share holder with his father in the ancestral property. The ancestral property which mittakshra, the school of law most widely held that even father can not dispose ancestral property without consent of his son, as he was an equal share holder. Female had an equal right only in fathers prporety. for example, if the father had ancestral property of 40 acres and he had 2 sons and a daughter. Then property will be dicvided in four parts. Two for sons and one for father and one for mother and each will get 10acres. Women will have an equal share in the father’s property meaning the 10 acre share of father will be divided into 4 parts, 2 for sons, 1 foe wife and i for daughter. Hence, each will get 2.5 acres. Hence as sons end up with 10+2.5 = 12.5 acres of land the girl child gets only 2.5 acre. However, the recent ammendment has changed it and now women are also entitles as an equal partner. hence, 40 acre pie will be divided into 5 parts 8 acres going to each. As women are getting significant property, increased responsibilty is also coming their way. this is basically a legisaltive change.
    however, the SC has been very pro poor . Judges like A.S. Anand and many of his fellow judges have given significant judgments protecting the right of women. However, the major challenge is now misuse of many of them like IPC section 498. As the cours are very strict to give bails in these cases, they are abused every now and then to intimadate the spouse and his family. Perheps a legislation is need of hour there also.

  3. Desh says

    Harsh – thanks! Very informative comments you have given! I think you are right in that these legislative changes on one hand give daughters and women higher share of inheritance and on the other hand also put more responsibility on them for the parents. And THAT is a side-effect of the change in law to the societal norms.

    I agree with you that HSA is a very complex law. As a lay man, even I could sense it. Moreover, it has a wide playground for experimentation and interpretation by different judges and lawyers – which I found strange and significant!

    In fact in our case although the will was created in 1975 and had explicitly denied the absolute rights to the wife, the judge was still not convinced that wife’s living rights should not have blossomed into absolute rights in that property like the other cases where the will was executed before 1956 (and thus had no absolute rights for wives). The judge engaged an Amicus Curie (a Sr. female counsel) to save his back side from attacks of the feminists, I guess… as much as to get some clarity. 🙂

  4. Desh says

    Harsh – thanks! Very informative comments you have given! I think you are right in that these legislative changes on one hand give daughters and women higher share of inheritance and on the other hand also put more responsibility on them for the parents. And THAT is a side-effect of the change in law to the societal norms.

    I agree with you that HSA is a very complex law. As a lay man, even I could sense it. Moreover, it has a wide playground for experimentation and interpretation by different judges and lawyers – which I found strange and significant!

    In fact in our case although the will was created in 1975 and had explicitly denied the absolute rights to the wife, the judge was still not convinced that wife’s living rights should not have blossomed into absolute rights in that property like the other cases where the will was executed before 1956 (and thus had no absolute rights for wives). The judge engaged an Amicus Curie (a Sr. female counsel) to save his back side from attacks of the feminists, I guess… as much as to get some clarity. 🙂

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