SEMINAR PAPER ON LAWS RELATIMG TO WOMEN AND CHILD

INDIAN WOMAN’S RIGHT TO PROPERTY-EVOLUTION UNDER MUSLIM LAW

SUBMITTED BY:-

AMRESH KUMAR

ROLL NO. 1405

5TH YEAR, 10TH SEMESTER BBA. LLB (Hons.)

SUBMITTED TO:-

MR. VIJAYANT SINHA

FACULTY OF LAW RELATING TO WOMEN AND CHILD

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

 ACKNOWLEDGEMENT

It is with sincere feelings of profound gratitude that I acknowledge the help, support and
guidance extended to me by my Faculty for Laws Relating To Women and Child, Mr.
Vijayant Sinha. His well-timed help and sincere advices helped me a lot while making
this project. I am feeling highly elated to work on the topic “Indian Woman’s Right to
Property-Evolution under Muslim Laws”, under her able guidance.

I would also like to thank my friends and seniors, who provided me good counsel and
without whose help and cooperation, making this seminar paper would have been a very
difficult task.

I would also thank the library staff of Chanakya National Law University for their ready
help and assistance whenever I needed it and making every relevant matter available
whenever required.

This project is a result of not only my labor and hard work, but also the valuable help
and cooperation of all the above mentioned people, who have helped me either directly
or indirectly in making this paper.

This paper consists of my individual efforts and independent views.

AMRESH KUMAR

Roll No. – 1405

 DECLARATION

I hereby declare that the research paper titled “Indian Women Right to Property Evolution
under Muslim Law” submitted by me is based on actual and original work carried out by me.
Any reference to work done by any other person or institution or any material obtained from
other sources have been duly cited and referenced. I further certify that the research paper has
not been published or submitted for Publication anywhere else nor it will be send for
Publication in the future.
I hereby warrant declare that:
This research paper authored by me is an original and genuine research work. It does not
infringe on the right of others and does not contain libelous or unlawful statements. It has not
neither been submitted for publication nor published elsewhere in any print/electronic form.
I have taken permission from the copyright holder to reproduce the matter not owned by me
and acknowledged the source.

Author Name : Amresh Kumar

Designation : Student, 5th Year, BBA.LLB (Hons.)
Institute : Chanakya National Law University, Patna
Mobile Number : 7217616764
Email Id : amreshkumar895@gmail.com
 RESEARCH METHODOLOGY

Method of research- The researcher has adopted a purely doctrinal method of research.
The researcher will make extensive use of the library at the Chanakya National Law
University and also the internet sources.

Aims and Objectives- To analyse in detail the laws relating to property under Hindu and
Muslim personal laws with a critical approach in the light of Indian women and the
recognition of their rights in India.

Sources of Data-The following secondary sources of data will be used in the project:
Internet, Books and Articles

 Agnes, Flavia , Law and Gender Inequality, Oxford India Press, 2001.

 Curzon, LB "Dictionary of Law" Fourth Edition, Universal Book Traders, Delhi,

199543.306.

 Property relations in independent India: constitutional and legal implications. Edited

by G.S. Sharma. Published by Bombay, N.M. Tripathi, 1967

 Jurisprudence - V.D. Mahajan's Jurisprudence and Legal Theory by V.D. Mahajan's

Edition: 5th Edition, Reprinted 2015

 Laxmidhar Chouhan "Women and the Law", Mittal Publications, Delhi, 2007

 P.M. Bakshi, “The Constitution of India” Universal, Pub. Delhi, 2006

 Sivaramayya "Matrimonial Property Law in India", Oxford University Press, Delhi,

1999

 A.A.A.Fyzee.outlines of Mohammedan Law (4th Ed), 1980

 Sruthi Pandey, “Property Rights of Indian Women. ’’Available at:

http://www.muslimpersonallaw.com.

Method of writing- The method of writing followed in the course of this research paper will
be primarily analytical as well as critical.

Method of Citation- The researcher will follow a uniform mode of citation throughout the
course of this research paper.
 HYPOTHESIS

Patriarchy and male dominancy deprives women from property and inheritance rights:

The proposed hypothesis for the current study reflects a general overview of the cultural
hurdles that are supposed to be primarily the influential figures in women’s lack of
empowerment with respect to share in property and inheritance. The foremost cultural
impediment in the hypothesis is marked as patriarchy and male dominancy that has been
found prevalent in accordance to analysis of data pertaining to the research community.
The social structure of the area reflects the centuries old customs and traditions that are
also represented as the hindering values in obtaining share in property and inheritance in
the locality. Variable like male dominancy, centuries old traditions and misinterpretation of
the religion have also being taken into consideration for analysis.

The reluctance of women to assert their own rights:

It is noted through cultural examples that women in India fear societal isolation and
condemnation on asserting their own property rights in their father’s property. The fear of
being condemned by the society for having exercised their right to property in the property
of their father as equal to their brothers often prevents the women in our society from
practically doing so. A woman is assertively said to have lawfully established rights in the
property of her husband after his death, which is hardly seen to be questioned. But if that
woman comes forward to claim her legitimate and lawful right in her father’s property it is
looked down upon by the Indian society which only reflects the first hypothesis of this
paper that is the patriarchal thinking of Indian society. It has succeeded to seep through our
mentalities so well that even women who may believe that they do have a legitimate right
in their ancestral property fail to actually do so in practice because of this thinking having
been imbibed into their minds as well. It is not only considered to be a greedy move but
infact widely disapproved as per our “customs”.
 CONTENTS

ACKNOWLEDGEMENT.........................................................................................................2
DECLARATION.......................................................................................................................3
RESEARCH METHODOLOGY...............................................................................................4
HYPOTHESIS...........................................................................................................................5
CHAPTER1................................................................................................................................8
INTRODUCTION......................................................................................................................8
i. Meaning of Property...........................................................................................................8
ii. What is property? : Today's Relevancy............................................................................10
iii. Types of Properties...........................................................................................................10
iv. Meaning of Right to property...........................................................................................11
Philosophical Foundation of Right to property........................................................................12
b) Locke and right to property:.............................................................................................13
c) Karl Marx and Right to property:........................................................................................14
d) Stammler and Right to property:......................................................................................14
e) Philosophical Foundation of Ravindranath Tagore's "Right to property:.........................15
Right to Property in relation to ninth schedule of Indian constitution: a critical study...........15
Ceiling Act and Right to property............................................................................................17
CHAPTER 2,............................................................................................................................18
EVOLUTION OF THE WOMEN'S RIGHT TO PROPERTY..................................................18
a) Engagement with Law......................................................................................................19
b) Feminist Jurisprudence & Right to property.....................................................................19
e) Stridhana: A concept in Indian Culture............................................................................20
The Married Women's Property Act, 1874: A short study.......................................................20
International Response with "Right to Property": Critique in Relation to feminist
Jurisprudence............................................................................................................................21
In U.K. Married women's property Act, 1870.........................................................................21
SOUTH AFRICA.....................................................................................................................22
c) Offence of Criminal breach of trust by husband:.............................................................23
d) Maintenance:.....................................................................................................................24
CHAPTER 3.............................................................................................................................25
CRITICAL ANALYZATION OF RIGHT TO PROPERTY OF WOMEN IN MUSLIM
LAW.........................................................................................................................................25
Property division: relationship & number of the heir:.............................................................25
MUSLIM WOMAN AND SUCCESSION..............................................................................26
DAUGHTERS:........................................................................................................................26
WIVES:....................................................................................................................................26
MOTHERS:..............................................................................................................................27
THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937......................27
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986..........27
Muslim Women Right to Maintenance U/S 125 of CrPC........................................................28
Sections 125 to 128 of Criminal Procedure Code:...................................................................30
There are two major structural problems with the implementation of this provision:.............31
CHAPTER 4...........................................................................................................................32
NEED OF EMPOWERMENT OF WOMEN:.........................................................................32
Gender Inequality: Hindrance in Development.......................................................................32
Empowerment of Women - a definition...................................................................................32
Empowerment..........................................................................................................................32
The world of humanity has two wing one is women and other man. Not until both wings are
equally developed can the bird fly. The Baha'l writings his statement clearly focused on the
importance of women in our society .Women constitute an important segment of any
community and perform multiple role as mother, housewife, and wages earners .Women
are important productive workers in India's national economy despite the fact that much of
their work falls in the indivisible or un- organized category...................................................33
Education is milestone of women empowerment....................................................................34
The National Policy on Education states:................................................................................35
Reason of increasing Gap between male and female literacy In India:...................................35
CHAPTER 5.............................................................................................................................36
CURRENT STATUS “ THE PRESENT POSITION OF PROPERTY RIGHTS OF INDIAN
WOMEN”:...............................................................................................................................36
Rules of Exclusion:..................................................................................................................37
The Response of the Judiciary:................................................................................................40
CONCLUSION.......................................................................................................................42
SUGGESTIONS......................................................................................................................43
BIBLIOGRAPHY....................................................................................................................44
 CHAPTER1.
INTRODUCTION

A Change in Ancient to Modern era: Relevance with "Right to property" Property has
played a pivotal role in any society whether it be agricultural or industrial, urban or rural,
ancient or modern developed or under-developed countries, or communist or capitalist
countries. The institutions of "state" and "property" alike have come to stay and wiled
enormous influence."1 Property relations are undergoing great transformations. 2 Property is
the most ancient, the most vital institution, with which man become concerned. It's
original function was to secure Physical Existence. 'Property' is a social concept and
being a social concept is a creation of Law. According to Bentham, Property and
Law are born together and will die together. He felt that before laws were made there was
no property and that if the laws were taken away property would cease. The expression
'property' is comprehensive. It takes in all categories of property movable or immovable,
corporeal or incorporeal. History records various theories expounded by economists from
time to time such as the theory of Natural Right, theory of utility and theory of Trusteeship.
The thin in its broader sense, is the right of domination, possession, and power of
dispossession which may be acquired over a physical thing. The right of property
preserved by the Legal systems, as well as, constitutions. The right is acquire it in
many Lawful mode, or by following say lawful pursuit, which the citizen in the exercise of
the liberty.

i. Meaning of Property

"The Indian Registration Act, 1908" defines 'Immovable Property, in its Section2, Sub-
Section 6 as follows: Section 2(6) : "Immovable property" includes land, building,
hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefits to
arise out of land, and things attached to the earth permanently fastened to anything which
is attached to the earth, but not standing timber, growing crops nor grass. "The General
Clause Act, 1897" defines under Section 3 Sub Section 26 as follow:
"Immovable property" shall Include land, benefits to arise out of land, and things
attached to the earth, or permanently fastened to anything attached to the earth". "The
Transfer of Property Act, 1882" under Section. 3: "Immovable property" — immovable
property does not include standing timber, growing crops or grass" In "The Bombay
General Clauses Act, 1904" says regarding "Movable property" shall mean property of
every description, except immovable property" Here in this Act simple meaning is given.

1
G.S.Sharma, Property Relations in Independent India, Tripatlu Pub. Mumbai, 1967, p.209
2
Ibid
 ii. What is property? : Today's Relevancy.

Property right is given to citizen is as old as Human being without property, man cannot
do anything. For example, writing of book, need of pen, paper, ink pad, all are the
properties of person, who writes something. But in modern era people understand
property means Lands, Building, Bungalows, and plots, houses, home etc. But resent
judgment says about properties means, Bonus, Money, Due payment, wages,
Policy income, Right to puja in Temple3 Right to way, Right to place for Namaj.
Traditional fair place. In eyes of Law above all the properties. But what is property Is a
million dollar's question. My pen is property, stones in field is property, woman's ear
ring is property, woman's Bangdlya Is a property. Wage of due paid is property.

iii. Types of Properties

a) "Immovable Properties" which is Land, Plot, Agricultural field. Buildings, Home,

Houses, Godown, Mountains, Fort. Tower, Gate, Tree, poles, standing timber etc.
which we can not remove one place to another place. We can Ad as temple,
bridge, garage, banyan trees, Monument of stones, like so on. Bombay Tenancy
and Agricultural Land Act, 1948, is base on Immovable property Rights. In Short
"no body can change the place which called immovable properties". Benefit
arrives from it is called Right to immovable properties Beneficial Right.

b) "Movable Properties" means which things man can move one place to another
pace Like Car, cycle, bull cart, motor car, table, chair, sofa, fan book,
money, ornaments all are in forms of movable properties. Right on movable
properties are to hold, to sale, to destroy, to make new, to make gift, donate, to
possess, to rent. etc. Al the rights are available to holder or owner of movable
properties. In any infringement She/he can takes legal action for violation of
visibilities. Named Tangibility and Intangibilities which properties we can see
like, motor car, plan, land etc. These are tangible properties. But some things of
Right behind the properties like, Rent, Lease, hire and another words called a
intangible properties. Intellectual properties, Like Copy Rights, Patent, Trademark
Rights all the Rights of Property which can not seen by physical view of things
that is why it is called as intangible as well as intellectual properties also.

This Topic is related to property. So, it is need to look into the types of properties. In
modern era so many types of properties. In Modern era so many types of properties in
following heads:

1. Movable Properties - Chair, Table, Pen, Money Document. Gold,

2. Immovable Properties - Metals, etc. Land, Plot, Home, Buildings, trees, forest, Tower,
Land attested, crops, people. Timber. etc.
3
Jagannath v. State of Orrsa, AIR, 1976, Sc.
 3. Tangible Properties immovable properties Cattle, Cupboard, Book etc, and all above
mentioned movable and

4. Intangible properties Lease, Rent, Licence, hire etc and ail Intellectual properties also

5. Intellectual properties Copryright, patent right, Trade marks Musical Rights, inventory
Rights, Design rights etc.

6. Interested properties Heritage, Due payment secures. insurance nominate, bank

balance_ Pension, Wills benefits, Compensations, etc.

We conclude that olden period and modem period are deferent in recognition of
properties, In olden time slave person also known as property. But in modern era not as. In
Modem era intellectual properties come in existent. But when we studying constitution
along with Article 31A and ninth schedule which deals property as Land, buildings and
forest only Particularly ninth schedule deals only with Lands of Agriculture and urban
Lands which is to be hold under the Legal Limits. Thus the type of properties are
concluded here,

iv. Meaning of Right to property

Meaning of Right to property — By Blackstone Emphasis the Right to property like this
That sole or despotic dominion which one man claims and exercises over the external
things of the world, In total exclusion of Right to any other individual in the Universe"4

Meaning of "Property Right" By Bentham

He says in his own Language that "A foundation of expectation of deriving certain
advantages from the thing said to be possessed the Right of property". Meaning of Right to
property is given by Justice Chandrachud in 'Law Lexicon" is that "Right to property
consists in the free use, enjoyment, and disposition of a persons acquisitions with out
any control or diminution, save only by the Law of the Land, the right to acquire power and
enjoy it in any way consistent with the equal rights of others and the just exactions and
demands of the state.5

Philosophical Foundation of Right to property

4
Curzon, LB "Dictionary of Law" Fourth Edition, Universal Book Traders, Delhi, 199543.306.
5
Justice Y.V. Chandrachud(ed.) "Law Lexicon" . The Law dictionary published by: Wadhwa and
company, Nagpur, 2nd edition, 1997.
 a) Hugo Grotius and Right to property:

Hugo Grotius (1583-1640) a 'Father of International Law profession by a Lawyer, a

philologist, historian, Dramatist poet and dealing with Dutch private and Public Law and
Roman Law6 Firstly, Hugo says about Right that 'Right is a work of reason, ordaining for
the common good something that is honorable established and proclaimed by someone
who has authority over a community. He says in his book “Treats of Jurisprudence and
Justice” about property that Property (toebehooren) consists of things (be hearing) and
obligations (inschulde). Hugo Grotius in his book “The Introduction to the Jurisprudence
of Holland” (Holland was his native place). This book composed three parts. He says in
third part about property like that "whatever is external to man and in any way useful to
man is property. He classified the property inter alia as corporeal or incorporeal,
movable or immovable and as belong to all mankind. to a great community, to
individuals or to no one. In connection with individuals Grotius recognize as
Inalienable' a personts life, body. liberty, and honor — things that belong to one in such
fashion that they could not belong to someone else. Grotious then divides the Legal
rights to things into two familiar categories : Right of property ( jus in rem) and
obligations (jus in personam). The first is a relationship between a person and the thing
without regard to other persons. The second is a right that one person has against another
to require from the latter something or act. Grotius then passes to the topic of possession
and ownership and he talks about acquisition of Lands.

He talks about Marriage property also and about succession and will and hereditary
property in this book in Part 111.

Hugo believed that regarding "Marriage property" He says that "A Husband's power over
the wife's property may also be limited. Grotius believed about won property that "It was
undisputed that Land won from the enemy becomes public property." Further Hugo
believed that "Property does not permit such a transfer of property without the owner's
consent, and the secondary Law of Nations which allow it".

6
Edward Dumbauld: “The Life and Legal writing of Hugeo Grotious, Oklahoma Press, Norman,
USA,1969, p.p. 1-2.
Hugo writes his book "On the Law of Prize" that "The Chapter of "Enemy property" as
prize is honorable and expedient, as well as, lawful." In Chapter IV, He concludes that
since war is Just if it is a means of enforcing Legal rights. In Chapter II, Grotius classifies
the "Legal rights which justify war into these causes: (a) self defence, (b) Protection of
property, including intangible rights and good name, (c ) enforcement of an obligation
due, as a debt under a contract, and the like and, (d) punishment of wrongs and
injuries. Thus Hugo gives right to property is a Fundamental Human rights for all the
citizens. He belived in war property of enemy is legal if war done legally.

The most fundamental of Hugo Grotius' principles is "Pacts sunt servanda" means the
respect for promises given and treaties signed. Hugo says other rules of Natural Law is
that "Respect for other's property and the restitution of gain made from it, the preparation
of damage caused by one's fault and the recognition of certain things as meriting
punishment"7 In short he says about violation of "Right to property" must made to
punishment. Now we looks in to thing of Locke, Karl Marx and Others in next topic in
this Chapter.

b) Locke and right to property:

In case of, Keswanand Bharati v. State of Kerala8 in this case Justice Dwivedi held in his
Judgment that "The Court's elevation of the fundamental rights recalls John Locke 'whose
notion of liberty involves nothing more spiritual than the security of property and is
consistent with slavery and persecution"9 John Locke argued the most important natural
Law thearist of Modern times. Locke argued in detail that certain rights self- evidently
pertain to individuals as human beings; that chief among them are the rights to Life, Liberty
and property, that upon entering civil society, humankind surrendered to the State. Only the
right to enforce these natural rights and not the rights themselves and that the state's failure
to secure these rights gives rise to a right to responsible, popular revolution. The
philosopher, building on Locke and others, vigorously attacked religious and scientific
dogmatism, intolerance censor ship and social and economic restraints. They sought to
discover and act upon universally valid principles governing nature, humanity and society
including the inalienable "rights of man" which they treated as a fundamental ethical and
social gospel. Locke wrote after the Glorious Revolution of 1988 and Justified the right to
property.

Locke adopted the individualistic premises of those values in terms of inalienable natural
rights. The individual had a natural in born right to "Life, Liberty and estate (property). He
gave his chief attention to the "Right of private property" the right of property existed prior
to and independent of any social contract whose function was to preserve and protect not
only the right to property but also other natural rights. So long as the government is faithful
to its pledge, it cannot be deprived of its power. Nobody had an absolute and arbitrary
7
Mahajan: Jurisprudence and Legal theory, Chapter: 29: p.697
8
AIR 1973 SC
9
Kenvanand Bharati v. State of Kerala, Action-82. The history of freedom and power, p.104,
power over himself or over any other person, to destroy his own life or take away the life or
property of another. The Limited power is given to the commonwealth for the good of
society. The state can never Locke stated that power to destroy the property rights with
impoverish the subjects. Locke gave theoretical forms to American and French Revolution.
Lastly we can say that Locke had gave theoretical foundation to whole world a in amiable
right to property to common man in world and save them for exploitation of prophetical
rights.

c) Karl Marx and Right to property:

Karl Marx a eminent person in field of Economic and politics. He believed in state
ownership of properties. He has rejected all the rights of individuals over private
properties, so he believed that If we are giving right to own a property so it is only the
benefit of upper class only. Lower class or poor class or worker class will be become
Land Less Persons because they are surely exploited by rich class and habit of
exploitation no property will be remain to the poor people. "According to Marx, property is
the key to the control of modem Industrial society, the capitalist through the
ownership of the means of production, controls the society. Therefore, Marxist theory
demands a transfer of the ownership and the means of production to the community.10
Karl Marx has shown the tremendous impact of Private Property right or private
commodities rights on existence of the Legal System or, the society. In his view, Private
property right is the root cause of various class differences in the society and the
existence of private property rights shall perpetuate inequalities among the individuals in
the society. He further Propagates that, by abolition of private property, inequalities and
injustice can be easily wiped out and a classless society free from class differences can
be happily brought in this world. In this atmosphere, the law may not be required to be
made and be enforced. Judiciary shall become unnecessary, and even existence of
"State" may become senseless.11 Thus Karl Mark want to remove the Right to property in
Private Sense and that's why further remove the class and makes equality.

d) Stammler and Right to property:

Stammler thinks regarding "Justice" when he gives solutions about "ideal justice" that
"His solutions were based on certain assumptions and those were the recognition of
Private Property subject to certain limitations regarding its use and equivalence of all
uses of property regardless of their economic and social importance"12 Thus, property
regardless of their economic and social importance." Thus here Stammler want to
equality by use of equal property rights.

10
G.S Sharma (Ed.): , Property Relations in independent India, N.M.Tripatili, Mumbat, 1967, Page 79
11
Singh H. (Past student of Pune University Department of Law) "Jurisprudence" Capital Law House, Delhi,
1999) pg.77 .
12
Jurisprudence and Legal theory" Chapter.25, p.602
 e) Philosophical Foundation of Ravindranath Tagore's "Right to property:

A critique Poet, Philosopher, Educationist, Patriot, humanist and internationalist

Rabindranath Tagore (1861-1941) was almost the spokesman of the soul of India 13 He
never subscribed to the collectivistic conception of property. He was certainly aware of
the disastrous consequences of concentrations of property. Nevertheless like Hegel and
T.H. Green, Tagore recognized that property was the great vehicle for the expression of
human personality. It is the objectification of our taste, imagination and constructive
faculties. But Tagore wanted that property should be made an expression of our
Universal self and not of our lustful acquisitiveness. Thus on psychological and aesthetic
grounds he supported private property and consequently he could not sanction the creed
of the communization of property, tagore believed that all the people have right to
property in Indian cultural way. Property should be given to use for poor people of India
and this we can develop our country also. Thus he is a founder of Modern Indian Right
to property in last British period.

Right to Enjoy property is basic Rights:

The ownership, possession and enjoyment of the property embraced within itself to
maximum possible extent the legal rights, a person can have in respect of the property.
Right to own and enjoy property is regarded as essential for a reasonably happy and
comfortable life, Since thy beginning of civilized living, the society and the state have
protected it by Law, notwithstanding the contrary view held by some. In India, as in
other countries, it has been protected before and after the constitution.

Before the 44th Amendment Article 31(1) and after that Amendment the newly Inserted
Article 300A guarantees that no person citizen or alien shall be deprived of his property
situated In India save by the Authority of Law. But the legal position seems to be that the
rights to own, possess and enjoy the private property are fully protected, under the Article
300. A person can be deprived of the ownership, possession or enjoyment of his
property only by authority of a validly enacted law and not by an executive action. Thus
our Indian constitution always protects the right of property in certain peripheries,
Hence we are protected under constitutional umbrella for property Rights..

Right to Property in relation to ninth schedule of Indian constitution: a critical study.

But India like poor (social and economic) country must have some restriction on Right to
property also far achieving of equality of society. In this viewpoint in 1951 Ninth
schedule inserted in constitution of India. Article 13 embodies a general norm of Indian
Constitutional Law the fundamental rights of individuals should be kept Inviolable from
legislative and executive encroachments. And Article 31B read with the Ninth Schedule
carves out an area of exception to this general rule. The general norms has also built-in
exceptions like "reasonable Restrictions" in Article 19 [for 19(1)(f)].
13
Vishwanth Varma "Modern Indian Political Thought" Educational Publishers, Agra, 1974, pg.68.
 This significant departure in case of Article 31B read with the Ninth Schedule is that
Legislative action has been immunized form judicial review. Ninth Schedule and with
Article 31B which provides a protective umbrella to certain legislations. The constitution
(First Amendment) Act, 1951 by which ninth schedule was introduced in to the
constitution, was questioned in this particular case. The constitutionality of the Ninth
schedule was again challenged in Sajjan Singh case14 but hence by applying the pith and
substance doctrine the court upheld the constitutionality of the ninth schedule in both
cases. But this issue was again raised in Golak Nath case15 In this case "parliament was
in competent to" further Supreme Court decided that to take away or abridge any of the
Fundamental Rights, and court applying strictly, all previous amendments namely, First,
Fourth and Seventeenth related to the Ninth schedule, would have been unconstitutional
and void. However, the court innovated the new principle or doctrine of prospective over
ruling, therefore, confined the effects of the decision on amenability to further
constitutional Amendments. In the famous case Kesvanath bharati v. State of Kerala16
the question was squarely raised as to whether the twenty-Ninth Amendment seeking to
insert seventeen more laws not the Ninth schedule is valid the court was unanimous that
the Ninth schedule device was valid as it has been valid since it was enacted. This
originally with aim to Ninth schedule of the constitution was introduced to protect
certain Land reform Laws and to limits the Right to property in certain extends this aim
is served now in India with Long history of Judiciary marathon. Kameshwar Singh case 17
to Kesvananda Case.

This land reform Act, Zamindari Abolition Acts, Tenancy Acts, and Ceiling Acts, All these
have been Included in the Ninth schedule from time to time, to provide them special
protection. Now there appears no possibility that it can further help in Implementation of
land reforms, and now right to property finds a different status and place in reforms. And
now right to property finds a different status and place in the constitution (Article 300-A),
which does not have any connection with Fundamental rights and the directive principles.
Since the primary objective of the Ninth schedule was to protect land reform enactments
from the onslaught of "Right to Property" as a Fundamental Right. However, after the
decision in Keswananda's case18 Inclusion in the Ninth schedule of any law is open to
challenge on the grounds of damage to the basic structure of the constitution.19 Thus first
constitutional Amendment in year 1951 inserted Article 31A and 31B along with 9th
Schedule. Because of, effect of reduction of case of Kameswar Singh vs. State of Bihar aim
of creating ninth schedule is "saving of certain Laws" from Judicial in relation to "Right to
property" Thus first Limitation in "Right to property" comes after constitution in sort a
period. Main interaction of create a ninth schedule is that to save the land reform Act from
Judicial Review. But subsequently Laws of many types were placed in ninth schedule.

14
Sajan singh v. State of Rajasthan, AIR 1985, SC 845
15
Golaknath V. State of Punjab, AIR 1967, SC 1643
16
AIR 1973 SC, 1461.
17
State of Bihar v. Kameswar Singh, AIR 1952 SC 252
18
Keshvanand Bharti v. State of Kerala, AIR, 1973, 1461
19
P.M. Bakshi, “The Constitution of India” Universal, Pub. Delhi, 2006, p.72.
So in Waman Rao V. State of Maharashtra20 Supreme Court held that "If any Law placed in
ninth schedule is violating "basic structure" of Indian constitution, then it can be
challenged. In case of I.R. Cohelo CJ V.K. Sabarwal held that "any law placed in ninth
schedule after 24th 4 April, 1973 shall be open to challenge, if it violates Article
14,15,16,19,20,21 of Constitution of India.

Ceiling Act and Right to property

Urban Land (Ceiling and Regulation) Act, 1976 came into existence.ln year 1978 Moraji
Desai Government has passed Amendment of Constitution named 44th Amendment and
Transfer the "Right to property" in Fundamental Right (as Article 19(1)(f)) to Constitutional
Rights (as Article 300A). This was major change in Right to property. Why this propertical
Rights to be exercised within limits, reasons is given in Bill itself as following:

1. to prevent concentration of urban property in hands of a few persons and

speculation and profiteering there in.

2. to bring above socialization36 of urban land in urban agglomerations to sub serve

the common good by ensuring its equitable distribution.

3. to discourage constitution of luxury housing leading to conspicuous consumption

of scarce building materials and to ensure the equitable37 utilization of such
material and

4. to secure orderly urbanization. Thus aforesaid aim and objectives it may be

violation of human right of individual's as Right to property. But some
"Reasonable Restriction" can be imposed by the state.

20
Waman Rao vs. Union of India, AIR 1981, SC 271(1981) 2 SCC 362
 CHAPTER 2,

EVOLUTION OF THE WOMEN'S RIGHT TO PROPERTY

Women's movement and Law The knowledge about women's movement is necessary to
understand how the movement has brought changes in law. The first phase was that of
Social reform movement. Its focus was on the suffering of Indian women and need for
reform. It showed a marked departure from fatalist, negative position on women lives.
Various issues were taken with the belief in mind that it is unfair to treat women as
inferior to men because they were born so. Few of such issues are sati, child marriage,
dowry, factory legislations etc. The pioneers of this movement were - Raja
Rammohan Roy, who fought against the prevalent Sati culture of Hinduism, Aruna Asaf
Ali, who established N.F.I.W., Swarna Kumari Debi, who started women education in
zanana and Madame Bhikaji Came, who believed in armed struggle for independence.

The focus of the second phase was on the assertion of women's power as mothers of the
nation. It challenged the biological explanation of existing inequalities between sexes
and preached that women have a right to be treated as equal contributors to the existence
of the society. The whole approach of this movement was to question the logic of the
existing discrimination. During this movement women started to join workforce. Many
women's organizations were created and many joined the independence struggle leaving
behind all taboos. The leaders of the freedom struggle also encouraged the women to
come forward. Their argument was that women should play a great role in the struggle as
they are peace lovers and have capacity to sacrifice and can tolerate pain.

The demand for co-education surfaced during this movement. This movement brought
forward many law reforms like laws regarding marriage, divorce, polygamy, custody,
Inheritance, pension for widows, right to husband's income etc. Sorojini Naidu, Sunity
Chowdhury, Bina Dash etc. were the pioneers of this movement. The third phase, the
post independence women's movement surfaced out of the disappointment faced by
reformist regarding Hindu law reform and the shelving of uniform civil code. This
movement had its foundation In the principle of equality and the focus was on gender
based structures. The issues taken were land rights (Telengana movement), wife beating
(Seheda movement), anti alcohol agitation in Maharastra, Jharkhand, anti price rise
(Bombay 1973, Gujarat 1974), Chipko movement (Himachal Pradesh 1973 onwards).
Finally, during the declaration of emergency there was a brief interregnum in women's
movement as most of the organizations went underground. From 1977 onwards many
autonomous women's groups were formed because the groups formed by the political
parties took up issues only if the violator is from opposite party. This movement
developed broader understanding of equality considering all existing power structures
feeding into each other, and takes into account the hierarchical relationship between men
and women. The issues taken by this movement are control over women bodies (rape,
domestic violence, dowry etc) and economic development (sustainable
development, women workers right, environment, communalism etc.), women health
 (harmful contraception, female infanticides etc.)

a) Engagement with Law

The women's rights activists have undergone a process of change with regard to their
understanding of women related issues. There has been a shift in the approach. In the
first phase they protested against the unfair treatment meted to women considering them
as inferior. In the second phase the approach changed a little and they challenged the
biological superiority of men over women. In the final phase a demand surfaced to
ascertain in right to equality with men. Throughout the movement the activists have
engaged themselves with law at various levels. It is only with such diverse levels of
interaction and engagement with law that the movement have been able to bring certain
positive changes

Some of the levels at which the women's movement engaged with law are as follows: -
Parliament, Judiciary and Executive — activists have approached each of the organs of
the state to bring about reforms and secure women rights. Violating by rebelling against
oppressive laws, Demand of women's participation in law reforms, Litigation in court of
law, Activists have raised protest, demonstrations against wrong judgments like the one
given in Mathura Case 1980,Demonstrations against law enforcing agencies Demand
for better procedure for investigations

b) Feminist Jurisprudence & Right to property

When we looked in Feminist view point of Approaches we finds so many Atrocities and
Exploitation of woman. We divide History in four points of view.

1) Ancient approaches

a) Vedic period

b) Manu period

c) Ancient History in Western countries.

2) Middle Age

3) Modern Age.

4) Ultra Modern Recent Age,

c) Feminist Jurisprudence is a product of ultramodern period. After 1960's period in

America and European countries had developed Feminism and Its impact in
Legal systems of world also. Original Feminist approaches developed in 1848
when the manifesto of KARL MARX published in London. In scholar's point of
view Karl Marx has developed for Right of exploited woman. Now we are
looking into different part of feminist Jurisprudence.
 d) Equal right to property Administer: Now in all over the world equal right to
property Administer is given but some Middle East Islamic countries has not
given these rights After all Asia, America, Europe, Africa and Australia had given
equal right to both Genders. As each spouse has equal right to administer his or

e) Stridhana: A concept in Indian Culture

In Indian women has his own right to property in Stridhana. The word stridhana is derived
form stri (woman) and dhana (property). In this way stridhana etymologically means
"woman's" property.21 The term stridhana first occurred amongst the smritis and in the
Dharmashastra of Gautam and literally means women property. In modern view we can
see in the Hindu succession Act, under section 14 of said Act, as follows:-

(I) "any property possessed by a female Hindu, whether acquired before and
After the commencement of this Act, shall be held by her as full owner
thereof and not as a Limited Owner." Ornament, clothes, gift, any any other
proerty which is belongs to her is called stridhana, Right of stridhana is her
own right to use said property. When a woman was entitled only a Limited
estate. "The Limited Estate" was also abolished by the section 14 (Now the
Hindu woman enjoys full rights over her property as absolute owner)

The Married Women's Property Act, 1874: A short study

This act is British Indian Act. This is also applicable today also. This act is applicable only
Chrstian and Jewist women. This Act provides certain liabilities on the husband of a
married woman. This act is not applicable to any married woman who at the time of her
marriage professed the Hindu, Mohammodan, Buddhist, Sikh or Jain religion, or
whose husband at the time of such marriage professed any of those religions.

21
Narayan Alchilesh, "Hindu Law" Law Agency Publication, p.84.
Married Women's wages and earnings shall be their separate property. This Act further
explains the liability of husband and wife when arises In cases of post-nuptial and ante-
nuptial debt or breach of trust. Any benefit from the insurance of herself and her husband
shall also be their separate property. At present this provision is also applicable to
Hindus and Mohammedans. Thus this Act protects the right of property of woman in
such a manner.

International Response with "Right to Property": Critique in Relation to feminist

Jurisprudence.

International convention Related to Feminist Jurisprudence with Right to property is legal

foundation of world. As we are looking in this topic firstly, we have to see
"convention on the Elimination of all forms of Discrimination against women" [CEDAW]
In this convention in Article-15 gives the "Right to Administer property" equally as well as
men and women, wording as follows:-

Article-15 Para-2 " State parties shall accord to women, in civil matters a legal capacity
identical to that of men and the same opportunities to exercise that capacity. In particular,
they shall give women equal rights to conclude contracts and to administer property and
shall treat them equally in all stages of procedure in courts and tribunals. Here by this
Article Right to administer property is equally provided.

Further in same convention under Article 16 para 9 provided property rights under wording
as follows The same rights for both spouses in respect of the ownership, acquisition,
management, administration, enjoyment and disposition of property, whether free of
charge or far a valuable consideration Thus this convention cares for equal property rights.

In U.K. Married women's property Act, 1870

This Act gives protection to women's in their property Rights as basic Human Rights. Thus
Act has makes the revolution History of property Rights of women. In comparatively in
India in year 2005 Hindu Succession Act, 19567 has had given equal property right of
woman in Ancestral property. In this view in U.K. in year of given matrimonial rights to
women.

Another best enactment in field of Matrimonial property Rights I "Matrimonial Homes Act,
1983. U.K." This Act provides Right of wife as Matrimonial status and half share of

Lands, Buildings and Bungalows, Houses whatever posses and owner of Husband. This
Act makes equal status in family members.

In Africa continent country like Uganda had made Act in year 1998 "Land Act, 1998 —
Uganda" This Act provides Basic Human Right of property to Ugandian peoples.

Now we are looking into the New Zealand country "they have enacted Law related to
Feminist Jurisprudence as "Matrimonial property Act, 1976" which provides New
Zealandian peoples a Basic Human Rights of property as well as a equal property Rights to
all the peoples as their equal right to Husband as well as same rights to wife.

In African continent country like Tanzania enacted "Tanzanian Land Act, 1998" which Act
provides equal Rights of properties to the Tanzanian peoples.

SOUTH AFRICA

Feminist Jurisprudence and "Right to Property" in Matrimonial relation in South Africa:

The property related provision of South Africa family Law were amended in the 1980s, and
1990s to improve women's position, where by the exclusively administered family property
and, unless otherwise specified in the ante nuptial contract, the separate property of the
wife. Material power was progressively restricted by statutory norms. Under "the
matrimonial Property Act, 1984" Under this regime the spouses equally own and administer
common property22 thus, this Act provides equal Rights of property to married women
also.

Further in South Africa in year 1994 enacted Law named "The restitution of Land Rights
Act, 1994" which gives equal right to property for women.

PROPERTY RIGHTS OF WOMAN

Pandit Jawaharlal Nehru, the then Prime Minister of India expressed his unequivocal
commitment to carry out reforms to remove the disparities and disabilities suffered by
Hindu women. As a consequence, despite the resistance of the orthodox section of the
Hindus, the Hindu Succession Act, 1956 was enacted and came into force on 17th June,
1956. It applies to all the Hindus including Buddhists, Jains and Sikhs. It lays down a
uniform and comprehensiye system of inheritance and applies to those governed both by
the Mitakshara and the Dayabahaga Schools and also to those in South India governed by
the the Murumakkattayam, Aliyasantana, Nambudri and other systems of Hindu Law.

22
Laxmidhar Chouhan "Women and the Law", Mittal Publications, Delhi, 2007, p.p.94-95.
A woman can claim property rights by claiming her stridhan, maintenance from the
husband, share in the joint Hindu family property, right to reside in matrimonial home.

a) Stridhan - Stridhan literally means woman's property. It consists of property given

voluntarily to the woman, as a token of affection, pnor to, at the time of marriage and
subsequently. Its origin lies in ancient Hindu texts, which recognized stridhan as that
property over which the woman had complete control. It includes jewellery, clothing,
cosmetics, utensils etc. which are voluntarily given to the bride at the time of her
marriage or subsequently by her family, the groom's family or any of the guests
attending the ceremony from either side. All such properties are considered to be the
sole property of the wife. No other family member has any right over these
properties.

b) Dowry:- as is understood today, consists of property that is demanded, extracted and

extorted under force, intimidation and threat, by materialistic men and their
families from the family members of the wife. it has never been intended or
considered to be exclusive property of woman.

There is an essential difference between stridhan and dowry and it's very important to
understand this difference. While stridhan is lawful, giving and taking of dowry is
unlawful. According to common understanding only those properties which are given
by bride's family won a demand raised by groom and his family are considered as
dowry. Properties given by bride's family voluntarily are called stridhan.

c) Offence of Criminal breach of trust by husband:

is quite often that the wife keeps her stridhan in the safe custody of her husband but that
doesn't mean she looses her right over that property. The husband is bound to return the
property whenever she might ask for it and is not allowed to misappropriate it without her
knowledge. Criminal breach of trust is an offence under the Indian Penal Code. The !a is
intended to cover situations where a person entrusts property in a- and that other person
betrays the trust and misappropriates it.

Though the provision of IPC Is not specifically meant for covering cases where Mu
husband falls/refuses to handover the stridhan to his wife the Supreme Court In landmark
judgment has read the provision into a matrimonial caw and thus given relief to the woman,
setting a precedent for the future. It said Such property was meant for the exclusive use of
the wife, and was only entrusted to the husband or his relatives for safekeeping. The wife
had a right to ask for a return of the property to her at anytime Husband and his family
members wore duty-bound to do so, failing which they would be prosecuted for the offence
of criminal breach of trust.23

23
Pratibha Rani v Suns] Kumar AIR 1985 SC 628
d) Maintenance:

The Concept of maintenance stems from the subordinate status of women. Women are
socialized into accepting a primary role of wife & mother; their contribution to the
household economy as home-makers remains unpaid; even as earning women, they
rarely have control over their earnings. Maintenance is intended to compensate for this
loss. It provides economic security to the dependent wife and aims at preventing
destitution of women. A woman is entitled to maintenance after divorce and even when
the divorce petition is pending. Most of the women in Indian society have no
independent earnings and are dependent on their men. Hindu Law whether traditional of
modem. Lakes care of their maintenance

e) Succession and Inheritance :

Women can acquire property through succession or inheritance.

CHAPTER 3.
 CRITICAL ANALYZATION OF RIGHT TO PROPERTY OF WOMEN IN MUSLIM
LAW

Muslim Woman’s Property Rights:

There are two broad schools of Muslim Law in India - Hanafi & Shia Are there any
difference between Sunni and Shia law of Inheritance? Hanfi rules only count those
relatives as heirs whose relation to the deceased person is through a male-son's
daughters, son's son and father's mother. Shia include even those persons as heirs who
are related to the deceased through a female eg. Daughter's son, daughter's daughter .

Succession & Inheritance - A few general rules of inheritance are: If all the heirs
claiming property are equally near in relation to the deceased they all have an equal right
in property A male takes double the share of a female If one is related to the deceased
through another, one does not inherit as long as that person is alive A nearer heir
excludes the remoter one A woman has certain rights to property in inheritance,
maintenance and Mahr. She is entitled to inherit property as: Daughter Widow
Grandmother Mother Son's daughter

Property division: relationship & number of the heir:

Property division: relationship & number of the heir Widow Share in her husband's
property Will get 1/8th share (when there are children) Will get 1/4th share (when there
are no children) Share of two/more widows Together will get 1/8th share (when there are
children) Together will get 1/4th share (when there are no children )

Dower or Mahr: Dower or Mahr Dower A sum of money or some other property which
the wife is entitled to get from the husband on marriage. It can be fixed at any time
before marriage or at the time of marriage. Two types of Maher Prompt: amount given to
the wife immediately on marriage Deferred: amount given to the wife when her marriage
has ended- either by death of her husband or by divorce.

Will or Wasiyat: The bequest of property (or money) after one's death to a particular
person. How much of his/her property can a Muslim bequeath? A Muslim cannot
bequeath more than 1/3rd of his total property (but if a woman has no blood relations &
her husband would be the only heir, then she can Will 2/3rd of her property in his
favour) This amount is calculated after the funeral costs and debts have been paid.

Gift or Hiba: Gift or Hiba When a certain property or thing or money is given by one
person to another person who accepts it. Hiba is made without the giver getting anything
in return All types of property may be given as a gift For a gift to be valid, there must be:
Declaration of the wish to make the gift Acceptance of the gift Giving of the gift to the
other person.
A Muslim's Will can be written or oral. There is no specific form for it but the intention
of making a Will must be clear from it. It is better to make a Will in writing. A Will can
be written on an ordinary paper.

MUSLIM WOMAN AND SUCCESSION

The Muslim Law of Succession is basically different from the other indigenous, systems
of India. The distinction between the self acquired and ancestral properties ,concepts of
right by birth coparcenary property, survivorship and partition etc. are not known to
Islamic law of succession which is based on the tenets' of the holy Quaran. No woman is
excluded from inheritance only on the basis of sex. Women have, like men, right to
inherit property independently, not merely to receive maintenance or hold property in
lieu of maintenance. Every woman who inherits some property. is its absolute owner like
man. There is .no concept of either sridhan or women's limited estate. The Muslim law of
succession which is uncodified makes no distinction between properties of deceased
male or female.

Rights of Females: - At present, males and females have no equal rights over property.
This is manifest when there are two heirs of opposite sex in the same degree. Then the
male heir takes two shares but the female heir takes only one share. Thus, a daughter
does not, however, by reason of her sex, suffer from any disability to deal with her share of
the property. She is the absolute owner of her inheritance. The same rule is applies to a
widow or a mother.ln case she has children capable of supporting her, the charge falls
upon them.

DAUGHTERS:

Daughter Share in father's property Share of half (when has no brother) Half of whatever
share the brother gets A man takes double the share of a female Mother Share in son's
property Will get 1/3rd share of her son's property (when there are no children) Will get
1/6th share of her son's property (when there are children) Grand mother Share in her
grandson's property Maternal grandmother will get 1/6th share (only if there is no mother
or grandfather) Paternal grandmother gets a share of the total property (only if there is no
mother or grandfather)

WIVES:

In Islamic law, a woman's identity, though inferior in status to a man's, is not

extinguished in him when she marries Thus she retains control over her goods and
properties. She has a right to the same maintenance he gives to his other wives, if any, and
may take action against him in case he discriminates against her.

The Supreme Court has held that in the case of divorce, a Muslim husband is liable to
make reasonable and fair provision for the future of the divorced wife which obviously
includes her maintenance as well. Such a reasonable and fair Provision extending beyond
the iddat period must be made by the husband Within the iddat period in terms of
Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and liability of
Muslim husband to Pay maintenance is not consigned to iddat period. Right to 'mehr'
according to the terms of the contract agreed to at the time of marriage. She will inherit
from him to the extent of one eighth if there are children or one fourth if there are none.

If there is more than one wife, the share may diminish to one sixteenth. In
circumstances, where there are no shares in the estate as prescribed by law, the wife may
inherit a greater amount by will. A Muslim may dispose of one third of his property by
will, though not to a sharer in the inheritance.

MOTHERS:

The same rule Is applies to a widow or a mother. Maintenance reverts to her parental
family after the iddat period (approximately 3 months). In case of divorce or widowhood,
she is entitled to maintenance from her children. Her property is to be divided according
to the rules of Muslim law. She is entitled to inherit one sixth of her deceased child's
estate,

THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937

The Act provides application of Muslim personal law to Muslims in matters described in
this Act.

As per this Act, all questions (save questions relating to agricultural land) regarding
interstate succession, special property of females, including personal property inherited or
obtained under contract or gift or any other provision of Personal Law, marriage,
dissolution of marriage, including talaq, Ila, zihar, Ilan khuia and mubaraat, maintenance,
dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and
charitable Institutions and charitable and religious endowments) the rule of decision In
cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

The Act provides about the rights of divorced Muslim women. Though there is a
provision that the maintenance can be governed under the provision of Sections 125 to
Section 128 of Code of Criminal Procedure but these provisions can be applicable, if
former husband declare that he would be preferred to govern under these provisions. The
provisions of this Act clearly take away right of any divorced Muslim women to claim
maintenance from her former husband.

Now the court can award any divorced Muslim women payment of maintenance from her
relatives and in case it is not possible by such relatives to pay her maintenance, the court by
order direct the State Wakf Board established under Section-9 of Wakf Act. The
maintenance can be paid under any other law force in State. It also provides provisions for
any suit of maintenance by divorced Muslim women under Sections 125 to 128 of Cr.pc
pending before a Magistrate to be disposed according to the provision of this Act. Section-
3 of this Act describes the right of Mahr and other properties of divorced Muslim women.

Muslim Women Right to Maintenance U/S 125 of CrPC

The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others, has held
that if the divorced woman is able to maintain herself, the husband's liability ceases
with the period of iddat, but if she is unable to maintain herself after the period of iddat,
she is entitled to maintenance under section 125 of the Code of Criminal Procedure. This
led to controversy as to the obligations of the Muslim husband to pay maintenance to the
divorced wife.

The Muslim Women (Protection of Rights on Divorce) Act was passed to dilute the
judgment given in this decision the Shahbano Case.
 SUBSTANTIVE LAW REGARDING MAINTENANCE: COMPARATIVE CHART –
BROAD OUTLINE

Muslim Wornen (Protection of Section 125 Code of Criminal

Rights on Divorce) Act 1986 Procedure

Jurisdiction Application is filed In the area Application where the

where divorced woman resides husband Is, or resides or
where he last resided with his
wife

Relief available Reasonable and fair provision Allowed a monthly

and maintenance, or the amount of allowance, not exceeding

Mahr or dower paid, all properties Rs500 No provisio for
given at the time of marriage or maintenance by children
after marriage II unable to relatives or Wakf Board after
maintain herself, after Iddai period lddat period
relatives ordered to pay
maintenance and if no relatives
exist then Wart board pays.

Punishment on failure to Imprisonment which may extend Imprisonment which may

pay to One year extend, to one month

Applies to Only to divorced woman To every married or

divorce woman.

Alteration/allowance No Such Provision. On change of circumstances

alterations maybe made.

Maintenance after Woman to be maintained by her No such Provisions.

Iddat children or parents or relatives or
the Warf board.
The law of maintenance is mostly governed by personal laws. Each community has its own
laws. The original intent of Section 125 of Criminal Procedure Code, which mainly talks
about maintenance, was to cover every woman irrespective of her religion and community.
However, cases like the Shah Bano Case, Daniel Latifi and in between these two the
enactment of Muslim Women (Protection of Rights on Divorce) Act 1986 reflects the
metamorphosis of the law relating to maintenance as applicable to Muslim women.

In Shah Bano the court held that section 125 Cr.P.C. being a secular provision, it is
equally applicable to Muslim women. However, this led to a controversy and the
judgement was opposed by many as being violative of the norms laid down in Holy Quran.
Thus a law called Muslim Women (Protection of Rights on Divorce) Act 1986 was enacted
which sought to govern the rights of Muslim women to maintenance after divorce. The law
was opposed by women's groups as being regressive and denying Muslim women the right
to maintenance after divorce. The Constitutionality of the law was discrimination in Daniel
Latifi case.

Giving a progressive interpretation to the provisions of the Act, the court read into the Act
Muslim women's right to "adequate provision" for her entire life to be made by the husband
during the period of Iddat. In a way this interpretation turned out to be more conducive
even as compared to provision under section 125 Cr.P.C. as it provided for one time
provision to be made for entire life (unlike monthly payment) and did not subject the
payment to the conditions like chastity of woman.

Sections 125 to 128 of Criminal Procedure Code:

Sections 125 to 128 of Criminal Procedure Code empowers the court to award maintenance
to be given by a man to his wife, children and parents.

Main features of this provision are as follows: -

a) Maintenance can be granted to wife, children (irrespective of legitimacy) and

parents

b) Objective is to prevent destitution

c) There is no upper limit prescribed for the amount of maintenance.

d) Following categories of dependants are entitled to have maintenance from

person with sufficient means his wife where she is unable to maintain herself
Minor children, irrespective of legitimacy, whether married or not Major children,
irrespective of legitimacy, who are unable to maintain himself or herself due to
physical or mental abnormality or injury. However it excludes married daughters

e) Parents
 f) The wife in order to get maintenance under this provision has to prove the
following: She is a legally wedded wife of the respondent, She is unable to
maintain herself, The husband neglects or refuses to maintain her, The husband
has sufficient means to maintain her

The wife has to further fulfill the following conditions to be eligible for maintenance
under this provision: She should not be living in adultery If she is living separately from
her husband then there should be sufficient cause for doing the same She should not be
living separately from husband by mutual consent

There are two major structural problems with the implementation of this provision:

a) Proof of income — especially of non-salaried persons - Often the husband claims

that he has no income to give maintenance to the wife. In such cases it is difficult
to establish the person's income. It has been established by various landmark
judgments that the husband is bound to give maintenance howsoever small his
income might be.

b) Execution of maintenance orders - The culture behind the provision shows that
there is serious gender bias. It denies maintenance to a wife if she is unchaste.
Besides gender bias the provision is also contradictory. For e g. 'Minor children'
covers both married and unmarried children whereas Child Marriage Restrain Act
makes child marriage illegal.

Further, it perpetuates woman's dependency on man for survival.

Thus there are several drawbacks in women's economic empowerment through law of
maintenance.

a) Linkage to chastity

b) Perpetuates dependency of woman

c) Difficulties faced in proving employment & income in court

d) Difficulties faced in enforcement of maintenance orders

e) Patriarchal mindset of judges

CHAPTER 4.
 NEED OF EMPOWERMENT OF WOMEN:

Abla is a word of Hindi literature associated with women's personality. In the literal
sense of the term Abla' denotes less capacity of women, weak and docile nature. The
journey of 6000 years from post Vedic period upto 21st century has been not able to
demolish the effect and influence of this word on women.

Gender Inequality: Hindrance in Development

It seems gender disparity is inherent in our very culture. Innumerable instances can be
cited from great epics of Ramayana and Mahabharata and also the Ancient Vedic
Literature which glorify male chauvinism. Women had no right to participate in the
proceeding of houses of Rajya Sabha and the assemblies but participation of women in
Yagyas was essential. Girls were not allowed admission in 'gurukulas' instead they had
to study at home.

But even after more than 60 years of independence equality of women is still a far cry in
our country. Presently in India, it is very difficult for women to find good life partner
without paying high price in marriage market. Extremist terrorist groups in many parts of
the country have been imposing codes and other restriction on women. Women not
complying with these dictums have had to face fatal consequences.

The movement for empowerment of women as a part of major civilization

transformation has been one of the most significant social and political development
during the last few decades. Empowerment has been understood as a process, a
movement, a collective action that enhances the ability of disadvantaged and powerless
individual or groups to challenge and change in their favour existing power relationship
that places them in subordinate economic, social and political position. The
empowerment of women implies a process to develop the capacity of self reliance
countering subordination on account of gender, social and economic status and role in
family and society.

Empowerment of Women - a definition

Empowerment of women is a pressing need of the day. Unfortunately, it is least

understood. It is therefore very essential to define empowerment for the benefit of all
partners:

Empowerment

i.) Empowerment is about people: both women and men - taking control over their
lives: becoming conscious of their own situation and position, setting their own
agendas, creating space for themselves, gaining skills, building self-confidence,
solving problems, and developing self-reliance. It is not only a social and
political process, but an individual one as well - and it is not only a
process but an outcome too.
 ii.) Outsiders cannot empower women: only women can empower themselves, to
make choices or to speak out on their own behalf. However, institutions, NGOs
and Government agencies, can support processes that increase women's self-
confidence, develop their self-reliance, and help them set their own agendas.

Empowerment of women; also, implies their ability to participate in and also lead social
movement, to remove obstacles in the progress towards their goals. Empowerment can
take place when there is Coordinated work between government, its agencies, non
governmental organizations (NG0s), the society and the individual. The last two
decades have seen an active discourse between NG0s, women activist and government
agencies. Voices are being raised in strident protest against dowry and crimes against
women. Feminists and women activists are trying to influence policy making and create
awareness in the field of literacy, environment, rural and slum development, women's
health etc. To strengthen this movement institutional and auxiliary frameworks are
created by government besides constitutional/legislative safeguards and judicial
concerns.

The world of humanity has two wing one is women and other man. Not until both wings
are equally developed can the bird fly. The Baha'l writings his statement clearly focused on
the importance of women in our society .Women constitute an important segment of any
community and perform multiple role as mother, housewife, and wages earners .Women
are important productive workers in India's national economy despite the fact that much
of their work falls in the indivisible or un- organized category.

In reference to Women, the concept of "EMPOWERMENT" is a global issue and

discussion on women's right is fore front of many formal and informal campaigns world
wide. The concept of women empowerment was introduced at the international women
conference at NAROIBI in 1985 .Women Empowerment has five components:

 Women's sense of self worth

 Their right to have and to determine choices

 Their right to have access to opportunities and resources

 Their right to have the power to control their own lives, both within
and outside the home

 And their ability to influence the direction of social change to

create a more just social and economic order, nationally and
internationally.29

Education is milestone of women empowerment because it enables them to responds to the

challenges, to confront their traditional role and change their life. Empowerment is an active
and multidimensional process which enables women to realize their full identity and
powers in all sphere of life.

Empowerment of women is very much essential to achieve sustainable Development.

Quoting

UNFPA report, the state of world population 1992", the News of Bernard Van Leer
Foundation says, that there can be no sustainable development without
development of women, because it is women who contribute most for development for
children.

Education is milestone of women empowerment

It enables them to responds to the challenges, to confront their traditional role and
change their life. So that we can't neglect the importance of education in reference to
women empowerment. Education is the first step towards empowerment and the most
crucial factor in over all development of the individual as well as nation. Literacy sets one
free from ignorance, exploitation and poverty it liberates the minds, opening Up new horizon,
new hope/ opportunities and self —confidence further equipping them with the knowledge,
skills, self respect and freedom to participate sustain and excel in their life

.Illiteracy on the other hand, breeds ignorance, which, leads to exploitation, poverty, neglect
crimes and number of social evils.

Literacy deprives women from all Opportunities and further prospects of leading a
meaningful life and enjoying good standard of living. Education is an effective instrument
for social and economic development and national integration. Education enables women
to understand their social and legal rights, become economically independent„ acquire
a voice in the affairs of the family and the community. Education is a gateway to
information, opportunities and empowerment.

India is poised to becoming superpower, a developed country by 2020. The year 2020 is
fast approaching; it is just 13 year away. This can became reality only when the women of
this nation became empowerment. India presently account for the largest number no of
illiterates in the world. Literacy rate in India have risen sharply from 18.3% in 1951 to
64.8% in 2001 in which enrolment of women in education have also risen sharply 7% to
54.16%. Despite strong linkage between women's education and their equality or
empowerment, female literacy remains very low in India. This is especially in the case in
the rural areas .Unfortunately only 39% of the women are literate among the 64% of man

In this reference our government also focused on the education to empowerment of

women.
The National Policy on Education states:

"Education will be used as an agent of basic change in the status of women. In order to
neutralize the accumulated distortions of the past; there will be a well —conceived edge in
favor of women. The National Education system will play a positive, interventionist role
empowerment of women. It will be foster the development of new values through
redesigned curricula, textbooks, the training and orientation of the teacher, decision-
makers and administration, and the active involvement of education institution. This will be
an act of faith and social engineering. The removal of women's literacy and obstacles
inhibiting their access to, and retention in, elementary education will receive overriding
priority, through provision of special support services, setting their time target, and
effective monitoring.

Reason of increasing Gap between male and female literacy In India:

1) Poverty is attributes as one of the main cause of deprivation of girls from

education .They need to either take care of their siblings at home, and do
household work and work outside and contribute financially to the family. A
recent report on the extent and depth child poverty in the developing world found
there be some 135 million children between 7 and 18 years old without any
education at all , with girls 60% more likely than boys (16) /0 compared 10%) to
be so "educationally deprived".

2) Inadequacy school facilities is another barrier .According to the PROBE report ,

44% of the school do not have play ground .54% of the school did not have
drinking water,72°/0 of the school did not have library ,84% school did not have
toilet and 2% of a school have single teacher. Parents are hesitant to send their girls
to schools that have only male teacher.

3) Lack of qualified female teacher is a major barrier to girls education.

4) Fear of sexual harassment is another aspect in deterring girls from attending

schools and a factor contributing to the high droop out rate.

5) Fixed schooling hours do not suit girls in rural areas, as they are need for
domestic work at home or in farms and fields during these hours. This is one of
the causes of the lower participation rates of girls In education.
 CHAPTER 5.

CURRENT STATUS “ THE PRESENT POSITION OF PROPERTY RIGHTS OF

INDIAN WOMEN”:

MUSLIM WOMEN'S PROPERTY RIGHTS:

Indian Muslims broadly belong to two schools of thought in Islamic Law: the Sunnite and the
Shiite. Under the Sunnite School which is the preponderant school in India, there are four
sub categories; Hanafis, Shafis, Malikis and Hanbalis. The vast majority of Muslims in
India, Pakistan, Afghanistan, and Turkey are Hanafis. The Shiites are divided into a large
number of sub schools, the two most important of which, so far as India is concerned are the
Ismailis and the Ithna Asharis, but they form a smaller section of the Indian Muslim
population. The usual practice in this sub-continent is to use the terms 'Sunni' law or 'Shia'
law. Strictly speaking, this is inexact; by the former is meant the Hanafi Law and by the
latter, the Ithna Ashari school. Broad principles of inheritance in Muslim law: Till 1937
Muslims in India were governed by customary law which were highly unjust. After the
Shariat Act of 1937 Muslims in India came to be governed in their personal matters, including
property rights, by Muslim personal law as it "restored" personal law in preference to custom.
However this did not mean either "reform" or "codification" of Muslim law and till date both
these have been resisted by the patriarchal forced in the garb of religion. Broadly the Islamic
scheme of inheritance discloses three features, which are markedly different from the Hindu
law of inheritance: (i) the Koran gives specific shares to certain individuals (ii) the residue
goes to the agnatic heirs and failing them to uterine heirs and bequests are limited to one-third
of the estate, i.e., maximum one-third share in the property can be willed away by the owner.
The main principles of Islamic inheritance law which mark an advance vis-à-vis the pre-
Islamic law of inheritance, which have significant bearing on the property rights of
women, are: (i) the husband or wife was made an heir (ii) females and cognates were made
competent to inherit (iii) parents and ascendants were given the right to inherit even when
there were male descendants and24 as a general rule, a female was given one half the share of
a male

24
Sumanthy.M and Nagendran K. "Women Empowerment Ethics and logics, southern
economist, July 15 2007 vol 46 Page no 5-6.
The newly created heirs were mostly females; but where a female is equal to the customary
heir in proximity to the deceased, the Islamic law gives her half the share of a male.
For example, if a daughter c0_ex1sts with the son, or a sister with a brother, the female gets
one share and the male two shares. The doctrine of survivorship followed in Hindu law is
not known to Mohammedan law; the share of each Muslim heir is definite and known
before actual partition. Rights of inheritance arise only on the death of a certain person.
Hence the question of the devolution of inheritance rests entirely upon the exact point of
time when the person through whom the heir claims dies, the order of deaths being the sole
guide. The relinquishment of a contingent right of inheritance by a Muslim heir is generally
void in Mohammedan law, but if it is supported by good consideration and forms part of a
valid family settlement, it is perfectly valid. The rule of representation is not recognized, for
example, if A dies leaving a son B and a predeceased son's son C, the rule is that the
nearer excludes the more remote and, there being no representation, C is entirely excluded by
B. There is however no difference between movable property and immovable property.

Some of the features of the Hanafi school are being pointed out here to get a glimpse into
the broad structure of the property rights of Muslim women in India. The Hanafi jurists
divide heirs into seven categories; three principal and four subsidiaries. The principal
heirs are Koranic heirs, Agnatic heirs (through male lineage) and Uterine heirs. The
subsidiaries are the successor by contract, the acknowledged relative, the sole legatee
and the state by escheat. The following 12 heirs constitute Class I heirs (Koranic Heirs): (a)
Heirs by Affinity - Husband and Wife (b) Blood Relations - Father, True Grandfather
(howsoever high), Mother, True Grandmother (howsoever high), Daughter, Son's
Daughter (howsoever low), Full sister, consanguine sister, uterine brother, and uterine
sister.

Rules of Exclusion:

The husband and wife are primary heirs and cannot be excluded by anyone, but they also
don't exclude anyone either. Law fixes the share of the spouses; if they exist they reduce
the residue which may be taken by the Agnatic or Uterine heirs, but they do not exclude
either wholly or partly any heir. The father does not affect the share of any Koranic heir
except the sisters (full, consanguine or uterine) all of whom he excludes. The mother
excludes the grandmother, and the nearer grandmother excludes the more remote. The
mother's share is affected by the presence of children or two or more brothers or sisters.
Her share is also greatly affected by the existence of the husband or wife and the father.
In the case of a daughter she is the primary heir. She partially excludes lower son's
daughters, but one daughter or son's daughter does not entirely exclude a lower son's
daughter. As far as the sisters are concerned, one full sister does not exclude the
consanguine sister, two full sisters however exclude the consanguine sister. The uterine
brother or sister is not excluded by the full or consanguine brother or sister. Another rule
that requires consideration is that, 'a person though excluded himself, may exclude
others.' For example, in a case where the survivors are the mother, father, and two sisters:
the two sisters are excluded by the father; and yet they reduce the mother's share to 1/6th.
Class II heir (Agnatic heir): Their classification is done as follows; Males (Group the
agnate in his own right, Group II (females)-the agnate in the right of another, Group III
— the agnate with another. The first group comprises all male Agnates; it includes the
son, the son's son, the father, the brother, the paternal uncle and his son and so forth. These
in pre-Islamic law were the most important heirs; to a large extent they retain, in Hanafi law,
their primacy, influence and power. The second group contains four specified female
agnates, when they co-exist with male relatives of the same degree, namely, daughter
(with son), and son's daughter howsoever low with equal son's son howsoever low,
full sister with full brother and consanguine sister with consanguine brother. The third
group comprises the case of the full sister and consanguine sister. For example if there
are two daughters and two sisters, here the daughter is preferred as a descendant to the
sister who is a collateral; thus the daughter would be placed in Class I and she would be
allotted the Koranic share and the residue would be given to the sister as a member of
Class II.

Under this system the rule that is followed is first the descendants, then the ascendants
and finally the collaterals. The agnatic heirs come into picture when there are no Koranic
heirs or some residue is left after having dealt with the Koranic heirs. Class III (Uterine
heir): This class is constituted mainly by the female agnates and cognates. Classification
is group Idescendants, which are daughter's children and their descendants and
children of son's daughters howsoever low and their descendants, Group II-
ascendants, which are false grandfathers howsoever high and false
grandmothers howsoever high, Group III-collaterals, which are descendants of parents
and descendents of grandparents true as well as false. Members of this class succeed
only in the absence of members of Class I and Class II. They also succeed if the only
surviving heir of Class I is the husband or the widow of the deceased. Property rights
through marriage: The Supreme Court of India has laid down in Kapore Chand v Kadar
Unnissa5, that the mahr (dower) ranks as a debt and the widow is entitled, along with the
other creditors of her deceased husband, to have it satisfied out of his estate. Her right,
however, is the right of an unsecured creditor; she is not entitled to a charge on the
husband's property unless there be an agreement. The Supreme Court has laid down that
the widow has no priority over other creditors, but that mahr as debt has priority over
the other heir's claims. This right is known as the widow's right of retention.

Will: There is a provision against destitution of the family members in the Islamic law in
that it is clearly provided that a Muslim cannot bequeath more than one third of his
property. However if he registers his existing marriage under the provisions of the Special
Marriage Act, 1954 he has all the powers of a testator under the Indian Succession
Act, 1925.

"An — Nisaa means women is an important chapter on the rights of women. Suran Nisaa
begins with an appeal to the solidarity of mankind, the rights of women, orphans

,including an equitable distribution of property. The reform introduced by Islam into the
rules relating to inheritance is two fold: it makes the female a co-sharer with male and
divides the property of the deceased person among his heirs on a democratic basis,
instead of handing it over to the eldest son, as was done by the law of primogeniture. The
Arabs had a very strong tradition that the eldest son alone could inherit. Women in fact,
was looked upon as Part of the property of the deceased and, therefore, her right to
property by inheritance was out of the questioned but Islam came as the defender of the
weaker sex and the orphans and a defensive war against the whole of Arabs was being
carried on by a handful of Muslims, the prevailing law of inheritance, which gave the
whole of the property to those members of the family who bore arms, was declared to be
unjust and a new law was given which put widows and orphans on a level of equality
when the change was first introduced, some of the companions complained to the Holy
Prophet, saying that, they were required to make over half the property to a daughter
who did not ride on horse back or fight with the enemy. The general principle of
inheritance was first laid down in the following words:

The property of the deceased may be divided into two groups. The first group consisting
of children, parents and husband or wife. Then the second group consisting of brothers,
sisters; they only inherit the property if all or some of the members of the first group are
wanting. Members of the first group are the immediate sharers and that is natural order
and if all this three of them are leaving they have all of them a right in the property. In
case of children, only a broad principle is laid down. The male shall have double the
share of the female. Thus, all sons and all daughters would be equal sharers, the son,
however, having double the share of the daughter. Another example of apparent
(obvious) inequality of treatment of the two sexes is that in which a man leave only
female issue. And there is only one daughter, she takes half the property; if there are two
or more daughters, they take two third of the whole, the residue. The residue going to the
nearest male member, according to a Hadith. Man is generally recognized as the bread
winner of the family and that is the position assigned to him in the Holy Quran. Keeping
in view his greater responsibties, it is easy to see that he is entitled to a greater share and,
therefore, the Holy Quran has assigned to him double the share of the female. In fact, if
the responsiby of the sexes are kept in view there is real justice and real equality
beneath this apparent inequality.

Children's children and lower descendent are as usual in the language of the Holy Quran,
included among the children but the basis of division will still be the immediate
descendent. Thus, if there are grand sons, they will take the shares of their respective
fathers and should be treated on a similar basis. But curiously enough grand daughter
with one daughter of the deceased is considered as a sharer inheritance, the two being
treated together a two daughter of the deceased. Likewise, if there is only one daughter who
is dead at the time of the dead of her father but has children then her children would take
the share of their mother, one half of the property. If the deceased leaves only daughter
one half of the residue shall go to a single daughter and two-thirds to two or more than
two daughters and what remains shall go to the nearest male relative according to the
Hadith. The case of husband and wife also dealt with in V.12. The husband gets one half
if the deceased wife has no issue and one fourth if she leaves issue. The wife gets one-
 fourth if the deceased husband has no issue and one-eight if he leaves issue after taken
out their portion, the rest of the property will go the children, the son having double the
portion of the daughter. This heritance law as explained above on the basis of the Holy
Quran is very simple in its application

In Hanafi law of inheritance, these shares are twelve in number; four males such as the
father, the grand father, the uterine brothers and the husband; and eight females wife,
daughter, son's daughter, mother, grand mother, full sister, consanguine sister and
uterine sister.

Among the female sharers, the widow takes one-fourth if the deceased leave no
children, otherwise one-eight. The daughter when only one takes one half; if there are two
or more daughters, they are equal sharers in two-third. The son's daughter takes one half
if she is only one and there is no lineal male descendent. If there are two or more in
similar position they take two-third; the mother takes one-sixth if there are children; or
two or more brother or sisters, otherwise one-third. The grand mother takes the mother
share when there is no mother. The full sister and the consanguine sister takes one half if
she is only one; two or more than two take two-third. The uterine sister's share is the
same as the uterine brother's. The second group of inheritors goes under the name of ahl
al-mirath or the heirs who take a residuary interest.

So, I conclude by saying that in Islamic society a woman a distinct and separate identity
and enjoys equal rights along with the right to property, she can own property, she is the
owner of her earnings, she can disposed off her earnings, and property as she reaches
within the bound of Halal (Lawful) and Haram (Unlawful). She has a right to inheritance,
she can claim on the property of her dead father, husband. Even, according to the Indian
Succession Act 1865, Section IV, a Muslim woman is the absolute owner of all her
property vested in or acquired by her. Property rights of Christian, Parsi (Zoroastrians)
women: The laws of succession for Christians and Parsis are laid down in the Indian
Succession Act, 1925 (ISA). Sections 31 to 49 deal with Christian Succession
and Sections 50 to 56 deal with Succession for Parsis.

The Response of the Judiciary:

It is clear from the foregoing that though the property rights of Indian women have grown
better with advance of time, they are far from totally equal and fair. There is much that
remains in Indian women’s property rights, that can be struck down as
unconstitutional. The response of the judiciary has been ambivalent. On one hand, the
Supreme Court of India has in a number of cases held that personal laws of parties are not
susceptible to fundamental rights under the Constitution and therefore they cannot be
challenged on the ground that they are in violation of fundamental rights especially those
guaranteed under Articles 14, 15 and 21 of the Constitution of India. On the other hand, in
a number of other cases the Supreme Court has tested personal laws on the touchstone of
fundamental rights and read down the laws or interpreted them so as to make them
consistent with fundamental rights. Though in these decisions the personal laws under
challenge may not have been struck down, but the fact that the decisions were on merits go
to show that though enactment of a uniform civil code may require legislative intervention
but the discriminatory aspects of personal laws can definitely be challenged as being
violative of the fundamental rights of women under Articles 14 and 15 and can be struck
down.25 Infact in one case the Supreme Court has held that that personal laws, to the extent
that they are in violation of the fundamental rights, are void26

In some judgments the Supreme Court has expressly recommended to the State to carry out
its obligation under Article 44 of the Constitution and formulate a uniform civil code. 27
There is a definite swing is towards a uniform civil code and one can see that the courts are
going to play a significant role to usher it in. Another heartening trend is that the Indian
courts are increasingly relying on international standards, derived from various
international declarations and conventions.28 Specifically CEDAW has been referred to and
relied upon by the Supreme Court of India in some judgments.29 These line of judgments
give a firm basis for the women of India to demand gender justice and equal rights on par
with international standards.

25
Anil Kumar Mhasi Vs. Union of India (1994 5 SCC 704), Madhu Kishwar Vs. State of Bihar (1996 5 SCC
125), Githa Hariharan Vs. Reserve Bank of India (1999 2 SCC 228), Daniel Latifi Vs. Union of India
(2001 7 SCC 740), N. Adithyan Vs. Travancore Devaswom Board & Ors. (2002 8 SCC 106), John
Vallamattom Vs. Union of India (2003 6 SCC 611).
26
Masilamani Mudaliar Vs. Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525)
27
National Textile Mazdur Union Vs. P.R.Ramkrishnan (1983 1 SCC 224), Mohd. Ahmed Khan Vs. Shah
Bano Begum (1985 2 SCC 556), Jordam Diengdeh Vs. S.S. Chopra (1985 3 SCC 62), Sarla Mudgal Vs.
Union of India (1995 3 SCC 635), Lily Thomas Vs. Union of India (2000 6 SCC 224), John Vellamatham
Vs. Union of India (2003 6 SCC 611)
28
For instance: Jolly George Verghese & Anr. v. State Bank of India: AIR 1980 SC 470, Gramophone
company of India Ltd.v. Birendra Bahadur Pandey & Ors.: AIR 1984 SC 667, People’s Union
for Civil Liberties v. Union of India & Anr.: (1997) 3 SCC 433,
29
Vishaka & Ors. v. State of Rajasthan & Ors.: AIR 1997 SC 3011, Gita Hariharan v. Reserve Bank of India:
AIR 1999 SC1149, C. Masilamani Mudaliar & Ors. v. The Idol of Sri Swaminathaswami: 1996 8 SCC
525
 CONCLUSION

An analysis of the inheritance rights of the Hindu and Muslim women brings forth the
reality that

This is the mere callousness of the Legislature. The international Conventions on women
always focus on women’s inheritance rights. However neither the community nor the
Church would ever take any step to plug the existing loopholes in the Indian Succession
Act 1925 because they are up in arms against women inheriting property. The Law
Commission also has been enthusiastic in the reforms of Hindu Succession Law. No
such enthusiasm is shown in reforming Christian Personal Law. In tune with the Law
Commissions recommendations, even the Government has made an effort to make
reformatory laws in Hindu Succession, though it is not implemented effectively. To make
matters worse Christian women are still being controlled by the Church through its
Canon laws which ensure women’s subjugation and subordinate status.

Apart from the ongoing struggle for a uniform civil code in accordance with the
Constitutional framework, today the India women are fighting for rights in marital
property, denied uniformly to them across all religious boundaries. There is also a
significant movement in some of the hill states, towards community ownership of land by
women by creating group titles and promoting group production and management of
land and natural resources by landless women for joint cultivation or related farm
activity. Land rights would be linked directly to residence and working on land under
this approach being lobbied for under the Beijing Platform for Action. However,
the challenges are many: social acceptance of women’s rights in property leads them. In a
country where women continue to be property themselves the road ahead promises to be
long and bumpy.
 SUGGESTIONS

 For women, effective rights in property are critically important, not just for their
economic well-being but also for their political and social empowerment. Why is
women’s command over such property important? Consider land. For the vast
numbers still living in villages, land remains the mainstay of livelihoods. It is the
primary factor of production and the main source of income and welfare for
millions.

 The amended Act is a significant legal step forward and has the potential for
substantially empowering women. But so far we have little information on this
count. In fact, we still do not have systematic data across the country on
women’s actual ownership of immovable property. A 1991 survey in seven states
by development sociologist, Marty Chen, although on a small sample, is
indicative. It showed that only 13 percent of women whose fathers owned land
had inherited any as daughters, although Kerala did much better with a figure of 43
percent. We also know from the Agricultural Census of 1995-96 (when gender
disaggregated data were collected) that women held only 9.5 per

cent of all operational (that is cultivated) land holdings. We need more up-to-date
information, however, and there is a strong case for strengthening the database by
disaggregating land owned and operated by gender in agricultural censuses and
NSS surveys.

 Moreover, although we now have a gender-equal inheritance law for Hindu

women, there have been rather few efforts by women’s organisations to use this
amended law innovatively. The neglect of the HSAA 2005 by women’s groups
is surprising, since the Act can go a long way in protecting women even
from domestic violence. The HSAA, as noted, allows women to reside in their
parental home as a right and not on sufferance. It is therefore time the enormous
potential of the HSAA 2005 in empowering women is given due cognisance,
both by civil society groups and government.

 In the long term, of course, it is not desirable that families be torn apart by
litigation over property. What we would want is a voluntary recognition by
society that daughters are equal to sons in terms of their rights over property,
especially immovable property. This will need substantial attitudinal change.
 BIBLIOGRAPHY

 BOOKS

1. Agnes, Flavia , Law and Gender Inequality, Oxford India Press, 2001.

2. Curzon, LB "Dictionary of Law" Fourth Edition, Universal Book Traders, Delhi.

3. Property relations in independent India: constitutional and legal implications.

Edited by G.S. Sharma. Published by Bombay, N.M. Tripathi, 1967.

4. Jurisprudence - V.D. Mahajan's Jurisprudence and Legal Theory by V.D.

Mahajan's Edition: 5th Edition, Reprinted 2015.

5. P.M. Bakshi, “The Constitution of India” Universal, Pub. Delhi, 2006.

6. Sivaramayya "Matrimonial Property Law in India", Oxford University Press,

Delhi, 1999

7. Laxmidhar Chouhan "Women and the Law", Mittal Publications, Delhi, 2007

8. A.A.A.Fyzee.outlines of Mohammedan Law (4th Ed), 1980

9. Sruthi Pandey, “Property Rights of Indian Women. ’’Available at: http://www.

muslimpersonallaw.com.

 WEBSITES

1. http://www.belgaumchamber.com/about-us/10-womens-right.html

2. http://memory.loc.gov/ammem/awhhtml/awlaw3/property_law.html

3. http://www.standardmedia.co.ke/mobile/?
articleID=2000110829&story_title=law-gives-women-right-to-
matrimonial-property