Above: A family court inside the Patiala House Court premises in Delhi/Photo: Anil Shakya

Beti Bachao, Beti Padhao and Mahila E-haat are not enough. How about bringing in parity by giving women ownership of property—equal to men?

By Shaan Katari Libby 

We did not interfere because she belongs to their family now.” This is a sentence I have heard time and again in Family Courts, and it has made me question where this psychology stems from. How have we been reduced to chattel? How can parents watch their daughter suffer at the hands of strangers and stand by silently? Is it really true that in this country cows are accorded a higher status than women?

This glaring inequality comes down to property. In a country of approximately 620 million women (to 750 million men), the question of a woman’s right to property comes up frequently in courts. The various religions in our country serve to make the issue multi-faceted in the legal arena. A look at the major religions and their laws:

Traditionally, a Hindu son was seen as the natural heir while the woman was seen as “property” to be handed over upon marriage when she would be a part of another family. Fortunately, times are changing (albeit slowly), and daughters are being treated in a similar manner to sons. For instance, as per the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall—(a) by birth become a coparcener in her own right in the same manner as the son; and, (b) have the same rights in the coparcenary property as she would have had if she had been a son.

In Prakash v. Phulavati (2016) 2 SCC 36, Justices AK Sikri and Ashok Bhushan held that “…the rights under the amendment are applicable to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters were born”. The fact that the father had to be alive on 9.9.2005, however, narrowed a woman’s right to equal ownership. An exception (Danamma @ Suman Surpur & Anr. v. Amar & ors (2018) 3 SCC 343) is that if a suit has been filed for partition of property, then even if the father had died prior to 9.9.2005, the sisters are regarded as coparceners.

The law is one very important aspect, but mindsets are slow to change. Wills still continue to override the law, unless challenged by the daughters. In a nutshell, Hindu women are inching their way to equality.

Muslims are marginalised, with education and employment indicators lower than the national average. As regards inheritance, Muslims are governed by their personal law, or the Shariat. India’s Shariat Application Act, 1937, entitles women to half of the man’s share of property, as a woman’s worth is considered only half that of a man.

At the time of marriage, Muslim women are asked what mahr they would like. In reality, as pointed out by senior advocate Bader Sayeed, at a recent talk, Muslim women barely ask for anything at all. They are amongst the weakest and most vulnerable women.

Mohd. Ahmad Khan v. Shah Bano Begum – (AIR 1985 SC 945) established the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Supreme Court dwelt on the Quran supporting the view that a divorced Muslim woman has the right to be maintained even after the period of Iddat (three months). The payment of mahr by the husband is not sufficient. Also, Section 125 of the CrPC  is a secular law and overrides the personal law.

The laws of inheritance are strict in Islam. A Muslim may dispose of up to one-third of his property by will, though not to a sharer in the inheritance. Wives will inherit from husbands one-eighth of the property if there are children or one-fourth if there are none.

As the third major religion in India, Christian succession is governed by the Indian Succession Act, 1925. Sisters are treated on a par with their brothers (Sections 31-49). Section 33 states that widows of intestate Christian men will inherit one-third of the property, the rest going to lineal descendants.

An intestate son’s property, where there are no children, goes to his widow (one-third) and his father (two-thirds)—the mother gets nothing (Section 42)! However, a widowed mother gets an equal share with her other children (Section 45).

Mary Roy v. State of Kerala – (1986 AIR 1011, 1986 SCR (1) 371) saw the Supreme Court of India strike down the Travancore Succession Act, 1916, as “unconstitutional” for contradicting the Right to Equality (Article 14). The case involved Mrs Mary Roy (divorcee, mother of author Arundhati Roy), who was harassed by her brothers to evacuate their father’s cottage. They insisted that she did not have any claim over it. Roy successfully established that her constitutional right to equality was being violated. She filed a writ petition before the Supreme Court invoking the constitutional remedy under Article 32.

Chief Justice PN Bhagwati stated: “No personal law can be held above the Constitution of India and therefore if any Act even if applicable in an area is ultra vires the provisions of the Constitution, such provision shall be held void and therefore will not be made applicable.” No distinction would be made hereafter between daughters and sons in matters of intestate succession, and they would each take an equal share.

In conclusion, as per the Law Commission of India’s Consultation Paper on Reform of Family Law 2018, the law should certainly affix some portion of property which may not be disposed of by will. Gender should be irrelevant as should marital status. Even the LCI seems to condone this type of thinking by suggesting that widows and unmarried daughters should be “reserved” something (paragraph 5.66).

The Indian government has reduced the importance of the Right to Property via the 44th Amendment (1978).

It is now a legal right under Article 300-A, and no longer a fundamental right. This serves to undermine the position of women.

The Consultation Paper, in paragraph 1.2, states that “…it is discrimination and not difference which lies at the root of inequality”.

However, it could be argued that the presence of an all-encompassing law that clarifies the position of women will remove these inequalities.

Women who own nothing are simply not in a position to assert any rights without jeopardising their offspring. Women are hardwired to protect their offspring and in the bargain end up short-changing themselves. The government alone is in a position to change all of this.

Is a woman truly considered an equal to a man in this country? If so, it is time to shelve these archaic practices and enact legislation for complete equality regardless of religion.

One agrees with the LCI (para 1.6) that the right to practise one’s religion is fundamentally important to women and should continue as it is. However, personal laws should not trump human rights, and certain areas like inheritance need to be separated from religious practice.

A woman should inherit exactly the same as a man and a parent should not be permitted to will her portion to a son save in certain specified exceptional cases. This would not be a terribly complicated law to enact. It does not need to wait for the full uniform civil code either.

If this country is truly interested in women’s rights, then in addition to schemes like Beti Bachao, Beti Padhao and Mahila E-haat, they need to bring a woman’s bargaining power on a par with that of a man, by giving her ownership of property—equal to a man. Then we will see our women’s numbers rise, and there will no longer be breast beating and wailing when a baby girl is born. One wonders why this is taking so long.

—The author is a barrister-at-law (Honourable Society of Lincoln’s Inn, UK) and a leading advocate in Chennai. (With inputs from Akhalya RD and Akshaya Ramalingam)