Women's Property Rights In India: Law On Paper Vs. Reality

In India, after 79 years of independence, women have gained significant legal ground, and they are being treated equally to men. Several other rights have also been given with a view to protecting their independence, including modesty and dignity. They have entered the arena of competition with a framework of rights so extensive that some argue they now outweigh those of men. From equality under the law and inheritance entitlements to robust protections against abuse, the statutory landscape has shifted dramatically.But do these rights truly exist in reality, or do they merely live on paper?The harsh truth is that for many, these protections remain elusive in practice. India has witnessed transformative legislative reforms in Hindu personal law for over seven decades, ranging from the Hindu Succession Act, 1956 (in short “HSA”) (Section 6, 8 & 15) to its landmark 2005 Amendment for giving rights in the coparcenary property. Similarly, a woman has a right of maintenance/residence under the following statutes: (i) Protection of Women from Domestic Violence Act, 2005; (ii) Under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (previously Section 125 Cr.P.C.); (iii) Under Section 18 & 19 of Hindu Adoptions and Maintenance Act, 1956 (in short “HAMA”); (iv) Maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955; (v) Right to reside in matrimonial home or right to live in a shared household, under Section 18(2)(d) of the Hindu Adoptions and Maintenance Act, 1956; (vi) Right to adoption under section 7 & 8 of the Hindu Adoptions and Maintenance Act, 1956; (vii) Right to divorce and permanent alimony as well as return of stridhan under section 13, 25 and 27 of the Hindu Marriage Act, 1955, Yet, a gulf persists between the statutory text and lived social reality. It is a gap that neither judicial interpretations nor parliamentary amendments have quite managed to bridge.What would be thoughts of a woman, who is suffering injustice every day ? let me try to capture some of them .“Whenever the question of property rights arises, my existence has always been denied.I am considered a part of society as a daughter, sister, wife and mother. I am also revered as Griha Lakshmi (the goddess of the household), yet beyond the right to claim maintenance, I have no inherent legal right over movable or immovable property.Many governments have come and gone. Laws have been amended repeatedly. The Hindu Succession Act, 1956, was enacted, and under Section 8, after the death of a male family member, I (as a daughter, wife or mother) was placed in the category of Class I heirs. After a long period, Section 6 of the Hindu Succession Act, 1956, was also amended, placing me in the category of a coparcener. I was content. Amendment of Section 6 of the Hindu Succession Act, 1956, led to controversy following the Supreme Court's decision in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36, which held that this right would apply prospectively, based on the date of my father's death. However, this was later overturned by the Supreme Court in Vineeta Sharma v. Rakesh Sharma & Ors., (2020) 9 SCC 1, which held that the amendment to Section 6 would have a retrospective effect.Yet, despite these developments, it remains unclear to me what I have actually gained, especially if I was born after 1956, i.e., after the enactment of the Hindu Succession Act, 1956.Under the currently established law, if I were born before 1956, I may be considered a coparcener. However, to claim my rights, I must effectively end my relationship with my father's home. The very act of asserting my right would almost certainly sever my relationship with my parents, brothers, bhabhis, bhatije and bhatijis, etc., if they are alive. If they are deceased, it would end my relationships with extended family members as well, provided the coparcenary property has not yet been transferred.If I were born after 1956, the theory of “right by birth” does not apply to me. I must wait for my father's death, only if he has not transferred the property through sale, gift or will. If I challenge such a transfer, my relationship with my father and brothers is bound to end. Despite the progressive mandate of the Hindu Succession Act, 1956, deeply entrenched customs and patriarchal expectations continue to discourage women from claiming their rightful share. A silent but powerful social code often prevails, whereby daughters who refrain from asserting their rights are considered virtuous, while those who seek their legal entitlement risk social ostracism. If my father dies intestate (without sale or will), I have a vested interest in the property under Section 8. However, my father's death often creates insecurity in the minds of my brothers, who fear their share will be reduced. As a result, time passes under vague, unspoken arrangements driven by uncertainty. Families grow, children mature.In some cases, after the parents' death, sisters are made to sign...

Women's Property Rights In India: Law On Paper Vs. Reality

Justice Dwarka Dhish Bansal

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Justice Dwarka Dhish Bansal

Women's Property Rights In India: Law On Paper Vs. Reality

Justice Dwarka Dhish Bansal

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

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Justice Dwarka Dhish Bansal

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