
1930s to 1956- A new Wave
The politics of women’s rights and such progressive movements were gaining momentum by the start of 1940s, and this had repercussions in the socio-political sphere. A discussion on the issue of divorce and property rights was being discussed. Eminent national leaders supporting the cause gave impetus to the women’s rights movements and it strengthened the cause of rights of women.
In the case of Akoba Laxman Pawar vs. Sai Genu Laxman Pawar, the Bombay court did not take away the inheritance right of the widow on the basis that she is unchaste. On the other hand, the Calcutta and Madras Courts gave differing opinions on similar cases. To clear this, a law committee was constituted in 1941, under the leadership of B.N. Rau, to examine the right to property, estate, separate residence and maintenance amendment to the 1937 act.[8] The committee had no woman in it. The report of the committee deconstructed women into three categories- widow of the deceased, widowed daughter in law and the daughter for the purposes of getting inheritance. The committee submitted its bills on succession and marriage, which came to be known as Hindu Code Bill.
The part I of the Hindu Code Bill introduced the daughter as a first-class heir on par with the son and other female relatives as heirs. It also gave absolute estate to women which meant that they could alienate the property which was not the case before.
It finally submitted the bill to the government, which was introduced in 1948.[10] One of the most important features of the bill, relevant for this discussion, was that the heirs of intestate succession are individuals but not coparceners. They had the absolute right to alienate the property. The Widow, Widow of a predeceased son and the daughter were brought on the same footing via this bill. There was a prolonged opposition to the bill. Some scholars also argued that the presence of Dr. B.R. Ambedkar- who already positioned himself as the biggest anti-caste force then- was also spearheading the family law reforms which angered casteist conservative elements. It was when Hindu Code Bill did not get passed after repeated attempts, Dr.BR. Ambedkar resigned from the post of law minister in 1951.[11]
Since 1952 elections were around the corner, the Congress and the remaining liberal leader in the government who wanted the reforms-Jawaharlal Nehru-had to prioritise whether the bill had to be at the forefront of the political debate. Jawaharlal Nehru, touring across the country did not care to campaign in Allahabad-his constituency- until the conservative opposition of the constituency started to galvanise the voters on the basis of the Hindu Code Bill.[12]
However, when Congress returned to power, the mandate was clear and the opposition to reforms in Hindu law could not be prolonged any more. One after another, different laws were passed with the Hindu Succession Act, 1956 which made widows and sons equal heirs. The 1956 act however prevented women from having equal rights to ancestral property. For instance, daughters did not have the same coparcenary rights as sons, and widows were not entitled to inherit their husband’s property if they remarried.
2005 and the way forward
To address these gender biases, the Indian government –under the first United Progressive Alliance government –enacted the Hindu Succession (Amendment) Act, 2005. This amendment ensured that daughters were granted equal rights to ancestral property, and widows were given the right to inherit their husband’s property even if they remarried. This amendment was not a pioneer since some states had already incorporated this provision into their local laws by then. However, neither is the 2005 amendment did the end point usher in a path-breaking change. To put it plainly, the amendment in 2005 was 50 years late. However, there is much more work to be done on the implementation front.
Many women in India are not aware of their legal rights and how to claim them. They are often excluded from inheritance by their families or denied their rightful share due to a lack of knowledge of their legal entitlements. Women in India often face social and cultural barriers that prevent them from exercising their right to property. In many cases, they are discouraged or even threatened by their families and communities from claiming their inheritance or owning property. Despite the legal provisions, a patriarchal mindset is still prevalent in many parts of India. Women are still considered as secondary members of the family and are often excluded from the property ownership. Women who assert their rights to property may and do face discrimination, harassment, or even violence from their family members or society. This can make it difficult for them to claim their rightful share in inheritance or property ownership. Even if women are aware of their rights, the legal process to claim them can be lengthy, complicated, and expensive. This can make it challenging for women from marginalised communities to access justice and assert their rights to property. Along with more legislative and process changes, there also needs to be emphasis on property rights to women, especially where the traditional methods of devolution of property are being followed.
(The author is a legal intern).Image Courtesy: nrilegalconsultants.in
[1] Mitra, M.D., 2017. Evolution of property rights in India. Land Policies in India: Promises, Practices and Challenges, pp.35-50.
[2] Singla, A., 2020. Schools of Hindu Law: An Analytical Approach to the Rules of Inheritance. Available at SSRN 4365648.
[3] Khan, A.K., 2021. RIGHT OF INHERITANCE OF HINDU WOMENIN ANCIENT INDIA: ANALYSIS OF” STRIDHAN” IN ANCIENT HINDU TEXTS. Turkish Online Journal of Qualitative Inquiry, 12(3).
[4] Agnes, F., 2011. Law, Justice, and Gender: Family Law and Constitutional Provisions in India.
[5] Halder, D. and Jaishankar, K., 2008. Property rights of Hindu women: A feminist review of succession laws of ancient, medieval, and modern India. Journal of law and religion, 24(2), pp.663-687.
[6] Ali, A., 2001. Evolution of public sphere in India. Economic and Political Weekly, pp.2419-2425.
[7] Sreenivas, M., 2004. Conjugality and capital: Gender, families, and property under colonial law in India. The Journal of Asian Studies, 63(4), pp.937-960.
[8] Sinha, C., 2012. Debating patriarchy: The Hindu code bill controversy in India (1941–1956).
[9] Ibid, p. 59.
[10] Ibid, p.63
[11] Ibid, p. 144.
[12] Ibid, p. 179.
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