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DIGITAL ERA AND FAMILY LAW: AN INSIGHT INTO THE GROWTH OF WOMEN’S RIGHTS OF SUCCESSION
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DIGITAL ERA AND FAMILY LAW: AN
INSIGHT INTO THE GROWTH OF WOMEN’S RIGHTS OF SUCCESSION
AUTHORED BY - VYSHAKH S SHEROFF
Introduction
The Universal Declaration of Human
Rights guarantees equal right to property, stating that no one's property
rights shall be arbitrarily revoked. The Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) is widely regarded as one of the
most important instruments focusing solely on women's rights, and it is often
referred to as the international bill of rights for women.[1] It
consists of a preamble and 30 articles that define what constitutes
discrimination against women and establishes a national action agenda to end
such discrimination.[2]
This convention expressly affirmed its position and imposed obligations on
state parties to take all appropriate measures to ensure equal rights for both
men and women in terms of property ownership, acquisition, management,
administration, enjoyment, and disposition.[3]
India ratified the entire convention in 1993.
The 1980 Five-Year Plan decided to
focus on women's health, employment, and education, ushering in the third wave
of Indian feminism. Women-led non-governmental organizations proliferated to
help other women. The movement also advocated for Dalit and marginalized
women's rights. Women's groups and development programs have largely
focused their efforts on improving women's economic and social status. Women's
groups primarily sought to empower women to integrate them into the mainstream.[4]
With the effects of economic
liberalization and the introduction of modern technology, women in India
experienced a cultural shift in the 2000s that emphasized rights such as
women's freedom, choice, and independence. The fusion of technology and the physical
world has completely transformed the global economic, social, and political
landscape. In theory, technology, as embodied by the digital revolution,
provides policymakers with an opportunity to create a more inclusive future.
Blogging and social media have democratized the feminist movement by increasing
accessibility, encouraging diversity, and inspiring leadership in a movement
that has historically lacked these elements. Bloggers and social media are used
by online or cyber feminists for political mobilization and community building.
Social media enable the rapid dissemination of knowledge and information across
borders, facilitating transnational feminist networks.
ABSTRACT
Women's property rights in the Hindu religious system have
long been viewed as a source of contention, both domestically and globally.
Restrictions imposed by religious and legal authorities. After the rise of the
machines, i.e. in the post-industrial revolution era, when social
deconstruction began with the rising awareness of Economic, Social, and
Cultural rights and Civil and Political Rights, the global community began
seriously considering it. Religion gradually lost its hold on society, and the
common people began to consider providing a fair and equal share to everyone
entitled to the property. As a result, the Universal Declaration of Human
Rights (UDHR) emerges, which defines the right to property as an essential
human right and prohibits any form of deprivation in this regard. Gender
equality in property rights is a critical human rights issue in today's
socioeconomic realities, and this concept varies by society.
Socio-cultural norms and practices have embedded
discrimination in a more deeply rooted dimension for Hindu women in terms of
property rights. This controversy has been exacerbated by the global
community's pressure for the establishment of fair and equal property rights
while assessing the feasibility and implications of a universal rights regime
that disregards religious or cultural differences. Through the amendment of existing
domestic laws, the legislative authority has been successful in improving the
current situation and bringing the entire rights regime at the national level
into line with the universal rights framework over time.
Keywords: Right to property, Hindu women,
legislative reformation, universal rights, globalization, Hindu law
-1-
The right to property is defined as
an essential human right in the Universal Declaration of Human Rights (UDHR),
and any deprivation of that right is prohibited. Gender equality in property
rights is a critical human rights issue in today's socioeconomic realities, and
this concept varies by society. Cultural relativists argue that this
distinction between rights and usages should be recognized both theoretically
and practically. Nonetheless, equal property distribution contributes to
women's true empowerment and is regarded as a critical factor in the
socioeconomic development process.
Thus, appropriate conformity and
compliance of national legislation with international covenants redressing
property rights, whether expressed or implied, may have paved the way for the
establishment of equal property rights for Hindu women in succession. It is unavoidable that the flow of
globalisation has influenced the state and national behaviour. The world has
become one without borders, with the free flow of technology, capital, goods,
and services. The presence of law within the State is no longer exclusive and
discriminatory, but rather capable of providing a sense of security, comfort,
and justice to everyone who lives and works in this State. One important
concept that can be used to increase resilience in all aspects of life in the
face of globalisation is to strengthen local wisdom that is imbued by religious
law in every community in the nation community.
The Hindu Code Bill was introduced in
the Parliament in 1946 but was not acted upon and reintroduced, by Law Minister
Ambedkar, in the Constituent Assembly on 11 April 1947.[5]
The bill for Hindu marriage with his
passion for the values of liberty, equality, fraternity, and dignity, Ambedkar
reframed the bill. [6]The
seamless integration of the overture of women's absolute share in property, the
removal of caste restrictions in marriage and adoption, the abolition of
polygamy, and support for monogamy would restore these egalitarian values. As a
result, the purpose of this bill was to restructure society around
gender-neutral ideas. The bill was a kind of equalizer and a path to creating a
society in which men and women would be equal, people of all castes and genders
would be equal, and there would be a perfect kind of democracy in which
everyone would be given equal status in society.
The Hindu Marriage Act was enacted in
May 1955, and it was followed by the Hindu Succession Act in May 1956, the
Hindu Adoption and Maintenance Act in December 1956, and the Dowry Prohibition
Act in July 1961. A woman has been made an absolute owner under Section 14 of
the Hindu Succession Act, 1956, by converting her limited estate on whatever
property she has into an absolute estate, and no woman can be denied property
rights on the basis of any custom, usage, or text.
Following 1956, five Indian states,
namely Kerala (1975), Andhra Pradesh (1986), Tamil Nadu (1989), Maharashtra
(1994), and Karnataka (1994), recognized the need for women to be treated
equally in both the economic and social spheres. Four of the five southern
states, with the exception of Kerala, took the initiative and enacted state
amendments stating that the daughter of a coparcener, by birth, becomes a
coparcener in her own right in the same way that the son does.[7]
The Hindu Succession Act of 1956
dealt a significant blow to the traditional view of women's property rights.
The act's greatest merit is that it establishes a uniform and comprehensive
system of inheritance for all Hindus. This act nullifies all succession
rules, whether based on a text or rule of Hindu law, or a custom or usage with
legal force. As a result, modern Hindu succession law is essentially a secular
law. There are no religious or spiritual considerations. There is no mention of
religion or spirituality. The most significant effect of this law is that it
has abolished Hindu women's limited estate and made her the absolute owner of
all property acquired, with the unrestricted power to dispose of it at her
discretion. The distinction between married and unmarried daughters has been
removed. This enactment also abolished the distinction between Stridhana and
Widows estate, making all property interests held by a Hindu woman absolute. It
has granted certain female heirs the right to succeed to the deceased's
interest in the coparcenary property. This act represents a clear break with
the past, bringing about significant and far-reaching changes in Hindu
intestate succession law.
Period leading up to this, the Hindu
Women's Rights to Property Act of 1937 was in effect, and while this act was
groundbreaking in that it granted rights of succession to Hindu widows for the
first time, it also left gaps that were later filled by the Hindu Succession
Act (HSA). HSA was the first post-independence enactment of Hindu property
rights; it applies to both the Mitakshara and Dayabhaga systems, as well as
persons in certain parts of South India previously governed by matriarchal
Hindu law systems such as the Marumakkatayam, Aliyasantana, and Nambudri
systems. The Act's main scheme is as follows:
1. The previously limited estate granted
to women was converted to an absolute estate.
2. Other female heirs were recognized,
while the widow's position was strengthened.
3. The principle of concurrent
succession of heirs of a particular class was introduced.
4. In the Mitakshara Coparcenary, the
principle of survivorship is maintained, but if there is a female in the line,
the principle of testamentary succession is used to ensure that she is not
excluded.
5. Remarriage, conversion, and
unchastity are no longer considered grounds for inheriting disability.
6. If the unborn child, son or daughter,
was in the womb at the time of the intestate's death and was born later, he or
she has a right.
Sections of
Hindu succession act that brought in change
Section 14
Section 14 of the Hindu Succession
Act removed a female's inability to acquire and hold property as an absolute
owner, and converted a woman's right in any estate already held by her as a
limited owner on the date of the Act's commencement into an absolute owner. The
provision is retroactive in the sense that it converted a limited estate into
an absolute estate even if the property was inherited or held by the woman as a
limited owner prior to the Act's enactment. The only exception, in the form of
a proviso, is for acquisitions made in accordance with the terms of a gift,
will, or other instrument, or a decree, order, or award that prescribes a
restricted estate. A woman has been made an absolute owner through Section 14
of the Hindu Succession Act, 1956, by enlarging her limited estate, on whatever
property she has, into an absolute one, and no woman can be denied property
rights on the basis of any custom, usage, or text.
The Supreme Court of India clearly
laid down the scope and ambit of Sections 14(1) and (2) of the HSA in the case
of V. Tulasamma & Ors. V. Sesha Reddi[8],
in which the court made a fine distinction recognizing the woman's right to
property through her pre-existing right to be maintained. The Court applied the
exception only when an instrument created a new and independent title in favor
of women for the first time, and it rejected it when the instrument merely
confirmed, endorsed, declared, or recognized pre-existing rights, such as the
right to maintenance.
Section 8
If a Hindu dies intestate, his
property will pass to his son, daughter, widow, mother, son or/and daughter of
a predeceased son, son or/and daughter of a predeceased daughter, widow of a
predeceased son, son or/and daughter of a predeceased son, and widow of a
predeceased son of a predeceased son. As a result, female heirs were granted
property rights over the deceased male Hindu's estate. This Section applies to
a male Hindu's self-acquired property or separate property.
Section 6
While coparcenary property, that is,
joint family property, would devolve by survivorship on the surviving members
of the coparcenary, that is, male lineage under Section 6 of the Act, if the
deceased had left a surviving female relative such as a daughter, widow,
mother, daughter of a predeceased son, widow of a predeceased son, daughter of
a predeceased son of a predeceased son, or widow of a predeceased son of
Section 6 of the HSA provides that when a member of a coparcenary dies, the
property passes to his mother, widow, and daughter, as well as his son, by
testamentary or intestate succession, as the case may be, and not by
survivorship.[9]
Section 23
Some inequalities remained in that,
according to Section 23 of the Act of 1956, if an intestate Hindu died
surviving both male and female heirs and his or her property includes a
dwelling house wholly occupied by members of his or her family, the right of
any such female heir to claim partition of the dwelling house shall not arise
until the male heirs choose to divide their respective share therein; the
female heir shall be entitled to a right of residence. Only if such a female
heir is a daughter and is either unmarried or has been deserted by, or has
separated from, her husband or is a widow.
Conclusion
When it comes to women's land rights,
a lot has changed since 1986. The Hindu Succession Act of 1956, as amended in
2005, granted daughters the right to own and inherit ancestral property.
Widows' inheritance rights have also been strengthened since 1937, when they
were first introduced. The rights of succession of women are being quickly
challenged, and landmark judgments are being handed down by progressive benches
of judges with reassuring regularity. The Women's Inheritance Law could result
in another landmark decision as late as August 2020. The Supreme Court ruled
that a woman was entitled to equal rights in her father's property even if he
died before 2005. This decision made it clear that the Hindu Succession Act of
1956 had given way to the more woman-friendly version of 2005. The August 2020
judgment overturned a series of earlier rulings that said the new rules would
apply only if the father and daughter were alive in 2005.
[1] Two,
I.T. (ed.) (2013) Nelson Mandela: champion of women’s rights, Global
Citizens. Available at:
https://www.globalcitizen.org/en/content/nelson-mandela-champion-of-womens-rights/
(Accessed: November 30, 2022).
[2]
http://www.un.org/womenwatch/daw/cedaw/cedaw.htm, (Accessed: November 30,
2022).
[3]
Article 16(1)(h), Convention on the Elimination of all forms of Discrimination
against Women (CEDAW), available online
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article16,
(Accessed: November 30, 2022).
[4]
Emelie Lawrence and Jessica Ringrose, "@Notofeminism, #Feministsareugly,
And Misandry Memes," Routledge (January 2018),
https://doi.org/10.4324/9781351175463-13
[5] Rajak,
K. (2020). Trajectories of Women’s Property Rights in India: A Reading of the
Hindu Code Bill. Contemporary Voice of Dalit, 12(1), 82–88.
https://doi.org/10.1177/2455328X19898420
[6]
(Ambedkar, 2014, p. 8)
[7] Rajak, K. (2020) “Trajectories of
Women’s property rights in India: A reading of the Hindu Code Bill,”
Contemporary Voice of Dalit, 12(1), pp. 82–88. Available at:
https://doi.org/10.1177/2455328x19898420.
[8] (1977) 3 SCC 99
[9] Nigam,
S. (2020) “A Hindu Daughter’s Right to Property: Is the retrospective amendment
of Section 6 of the Hindu Succession Act a step towards women’s economic
empowerment? .” Available at: https://doi.org/Legal News and Views Volume 34 Number
9.
Article Information
DIGITAL ERA AND FAMILY LAW: AN INSIGHT INTO THE GROWTH OF WOMEN’S RIGHTS OF SUCCESSION
Authors: VYSHAKH S SHEROFF
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/06
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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